Right of Private Defence – Complete Details

Right of Private Defence -Section 96-106

Introduction:

The law of private defence is a right available to a person when he suddenly faced with an attack to his person or property and the immediate aid from the state machinery is not available, that person is entitled to defend himself and resist the attack and to inflict on the attacker any harm that is necessary for the purpose of defence. So, The right of Private Defence serves a social purpose.

Need of such right

It is the primary duty of the State to protect the life and property of its individuals, but no State, no matter how large its resources might be, can depute a policeman to watch the activities of each & every individual and protect him. So, the Right of Private defence is absolutely necessary for the protection of one’s person, habitation or property against the assailant who manifestly intends & endeavours to take them away. To meet such exigencies, the law has given the right of private defence to each & every individual.

 

Things done in Private defence – Section 96

Nothing is an offence which is done in the exercise of right of private defence.

  • Section 96 does not define the expression, Right of private defence. It only carves out an exception in the exercise of such right.

Sekar VS. State of Rajasthan 2003 S.C

“It was held that a plea of right of private defence which is further elaborated in section 97 cannot be based on speculation. In order to find out whether the right exist or not, the entire incident must be examine.”

The principles as to Right Of private defence of body are as follows :

  1. There is no right of private defence against an act which is not in itself an offence under the code.
  2. The right of private defence commences as soon as reasonable apprehension of danger to the body arises and is Co-Terminus with the duration of such apprehension.
  3. It is defensive and not a punitive or retributive right therefore in no case more harm than is necessary to inflict in defence is permissible. So dis-proportionate harm cannot be inflicted in the exercise of self defence.
  4. The right extends to killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the crimes enumerated in the 6 clauses of sec 100 & 103 of IPC.

Burden of proof

Here accused need not to prove the existence of the right of private defence beyond reasonable doubt. It is enough to show that preponderance of probability is is in his favour.

 

Rajinder singh VS. State of Haryana 1995 S.C

“Section 96 to 106 codify the entire law relating to private defence of person and property including the the extent of and limitation to exercise such right.”

Raj singh vs. State of Haryana 2015 S.C

“The law of private defence does not require that the person assaulted or facing apprehension of an assault must run away for safety.”

 

Free fight

Where two parties come armed with determination to measure their strength and to settle a dispute by force and in the ensuing fight both sides receives injuries, no question of right of private defence arises. In such a case of free fight both parties are aggressors and none of them can claim such right.

 In such fights the question that which party attacks first is immaterial.

State of U.P vs. Ram Swarup AIR 1974 S.C 1570

The Hon’ble court held that, When the accused himself goes with a gun to attack the victim and the victim in self-defence Re-attacks the accused, by killing the victim, the accused cannot plead right of self defence.

 

Right of Private defence of the Body and of property -Section 97

Every person has a right subject to the restriction contained in section 99 to defend

  1. His own body and the body of any other person against any offence affecting the human body.
  2. The property whether movable or immovable of himself or 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.

Defence of Person

Cases:

  • A man cutting the throat of his wife, their son shot and killed his father. It was held that if the son had a reasonable grounds for believing and honestly believed that his Act was necessary for the defence of his mother, the homicide was excusable.
  • Where a girl was being sexually molested and her father hit the assailant resulting in consequential death, it was held that the father was entitled to the right of private defence irrespective of the fact whether the affair was with or without consent because of the girl being a Minor.

Defence of Property

Cases:

Bhagwan Singh Vs. State of Punjab 1994 S.C

It was held that, Under section 97, Every person has the right subject to the restriction contained in section 99, to defend his properties against any attack which is an offence falling under the definition of theft, robbery, mischief or criminal trespass. This right is not available to an aggressor.

Ram Rattan Vs. State of UP 1977 S.C

“A true owner has every right to disposes or throw away a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his acts of possession. But this right is not available to the true owner if the trespasser has been successful in accomplishing his position to the knowledge of the true owner.”

 

Right of Private defence against the act of a Person of Unsound Mind, etc.Section 98

Every person has the same right of private defence against the act of a person of unsound mind in the same way as he has, in the case of a sane person.

Illustration

  • Z, under the influence of madness, attempts to kill A, Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

 

Acts against which there is no Right of Private defence – Section 99

  • There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done by a public servant acting in good faith under color of his office though that act may not be strictly justifiable by law.

[It simply means if a public servant in good faith and under the powers empowered by his office performs an act whether it creates reasonable apprehension of death or grievous hurt or not, there is no right of private defence. Example section 144 of Cr.PC, A.F.S.P.A, etc]

  • There is no right of private defence against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done or attempted to be done by the direction of a public servant acting in good faith under color of his office, though that direction may not be strictly justifiable by law.
  • There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

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.

  • It means that the harm caused in exercising right of private defence should be proportionate.

Explanation 1A person is not deprived of the right of private defence against an act done by a public servant as such unless he knows or has reason to believe that the person doing the act is a public servant.

Explanation 2A person is not deprived of the right of private defence against an act done or attempted to be done by the direction of a public servant unless he knows or has reason to believe that the person doing the act is acting by such direction unless such person state the Authority under which he acts or if he has authority in writing, unless he produces such authority, if demanded.

 

When Right of Private defence of the Body extends to causing death Section 100

Subject to the restrictions mentioned in Section 99, the right of private defence of body extends to causing death in the following cases when –

  1. Such an assault as may reasonably cause the apprehension that DEATH will otherwise be the consequence of such assault.
  2. Such an assault as may reasonably cause the apprehension that GRIEVOUS HURT will otherwise be the consequence of such assault.
  3. An assault with the intention of committing RAPE
  4. An assault with the intention of gratifying UNNATURAL LUST.
  5. An assault with the intention of KIDNAPPING or ABDUCTING.
  6. An assault with the intention of WRONGFULLY CONFINING a person so that he will be unable to have recourse to the public authorities for his release.
  7. *An act of THROWING or ADMINISTERING ACID or an ATTEMPT to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

*{Inserted by the Criminal law (Amendment) Act, 2013}

 Vishvas aba kurane vs state of Maharashtra AIR 1978 S.C

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

Amjad khan VS. State 1952 S.C

In this case, the Hon’ble Supreme Court held that the accused had no time to have recourse to the public authorities. The mob had already broked one part of the building and was actually beating on the doors of the other part. It was also evident that the accused had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or to his family.  The circumstances in which he was placed were Amply sufficient to give him a right of private defence of body even to the extent of causing death. These things cannot be weighed in too fine a set of scales or in a Golden scales.

 

When Right of Private defence extends to causing any harm other than Death – Section 101

It the offence is not of any of the descriptions given in section 100, the right of private defence of the body does not extend to the voluntary causing of death of the assailant, but can extend to voluntary causing to the assailant of any harm other than death.

Commencement & Continuance of the right of Private defence of the body of a person – Section 102

The right of private defence of the body of a person 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 it continues as long as such apprehension of danger to the body continues.

Deo Narain VS. State of Uttarpradesh 1973 S.C

The Supreme Court held that the right of private defence is a preventive and not punitive right. If after sustaining serious injuries, there is no apprehension of further danger to the body,  obviously the right of private defence would not be available.

But to say that the appellant could only claim the right to use force after he had sustained assault is a complete misunderstanding of the law embodied in section 102 of IPC.

 

When such right of private defence of Property extends to causing death – Section 103

Subject to the restrictions contained in section 99, the right of private defence of property extends to the voluntary causing of death of the wrongdoer, if the offence or committing of offence is any one of the following :

  1. Robbery
  2. House breaking by night
  3. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property.
  4. Theft, Mischief or house trespass under such circumstances as may reasonably cause the apprehension that death or grevious hurt will be the consequence if such right of private defence is not exercised by the person.

 

G.V.S Subbrayanam VS. State of A.P 1970 S.C

 The principle underlying the right of private defence is that, the court will not go into the question of excess by adopting a test of detached objectivity. But the right of self-defence itself is subject to certain basic restrictions, one of which is that the harm inflicted in self-defence must not be more than is legitimately necessary for the purpose of the defence. However the force used in exercising such right cannot be weighed in Golden scale.

 

When Such right of private defence extends to causing any  harm other than death – Section 104

“If the offence or committing of such offence is not from the description enumerated in section 103, then the right of private defence does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death.

 

Commencement & Continuance of the Right of Private defence of Property – Section 105

The right of private defence of Property commences when a reasonable apprehension of danger to such property commences.

  • The right of private defence of Property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained by the person or the property has been recovered.
  • The right of private defence of Property against robbery continues till the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
  • The right of private defence of Property against criminal Trespass or mischief continues till the offender continues the commission of criminal Trespass or mischief.
  • The right of private defence of Property against house-breaking by night continues as long as such house-Trespass by house-breaking continues.

Right of Private defence against deadly assault when there is a risk of harm to an innocent person – Section 106

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 effectively exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.

  • It simply means that the right of private defence of causing death extends also to cause harm to an  innocent person, if there is reasonable cause of apprehension of death.

 

Illustration

A is attacked by a mob who attempt to murder him. At that time 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. Here A commits no offence if by so firing, he harms any of the children.

 


Also Read :

Introduction to Indian Penal Code

Intention, Recklessness in IPC

Murder & Culpable Homicide – Complete Analysis 

Theft VS. Extortion

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