PRIVATE DEFENCE

RIGHT TO PRIVATE DEFENCE under IPC

Criminal Law Indian Penal Code LAW EXPLAINED
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INTRODUCTION

The defence of person and property of every citizen is the responsibility of the State. But, there are times in life when a person has to act unlawfully due to various circumstances. When a person reacts in such a manner, it can be included under private defence. Private Defence is the most important right provided to a person by the law for the protection of life and property. The right of private defence is recognized in every system of law. The right of private defence has been provided by law for protecting oneself from danger at such time when state aid is not possibly available. This article explores the provisions related to private defence and its case laws.

PRIVATE DEFENCE

Private Defence is the use of unlawful actions taken by a person to protect him or his property from imminent danger. According to Mayne1the law of self-defence is based on four propositions:

  1. The Society undertakes, and, in the great majority of cases, is able to protect private persons against unlawful attacks upon their person and property.
  2. Where the aid of society can be obtained, it must be reported to.
  3. Where the aid of society cannot be obtained, an individual may do everything necessary to protect himself.
  4. The violence used must be in proportion to the injury to be averted and must not be employed for the gratification of vindictive or malicious feelings.

Chapter IV of the Indian Penal Code, 1860 states about general exceptions which have been framed to prevent the requirement of repeating the number of limitations in the penal clauses. Section 6 of the Indian Penal Code, 1860 expressly has mentioned that all the definitions provided in the Code are subject to general exceptions. The general exceptions include Judicial Acts, Mistake of fact, Accident, Absence of criminal intent, Consent, Trifling acts and Private Defence. Section 96 to 106 of the Indian Penal Code, 1860 provides the provision for Acts done in Private Defence.

Section 96

This section refers that if something is done in the exercise of the right of private defence, it is not an offence. The section has not defined the term ‘private defence’. The right to self-defence has to be exercised in proportion. The force used in the defence should be reasonable. There is no test to determine whether the person acted in exercise of private defence and determination of this question depends on the facts and circumstances of the case.

In the case of ‘Arun v. State of Maharashtra2’, the court held that whether the right of private defence is available or not depends on the facts and circumstances of each case. The burden of proof lies on the accused.

In the case of ‘Laxman v. State of Orissa3, the court held that the right of private defence is available where there is an immediate necessity of averting back. The necessity has to be real.

The right of private defence is defensive and it is available only when circumstances justify it. It cannot be pleaded for a vindictive, aggressive or retributive purpose of offence.

Section 97

The section provides offences against which the right of private defence can be exercised. Section 97 refers that every person has a right to defend:

  1. His own body or the body of another person against offences affecting the human body.
  2. His property or property of another person, whether the property is movable or immovable, against theft, robbery, mischief or criminal trespass or any attempt to commit such offences.

The section also states that this right has to be exercised with subject to restrictions mentioned in Section 99 of the Indian Penal Code, 1860.

When sections 97 and 99 are read together, they lay down principles of the right of private defence. The right to private defence is an inherent right of a man.

Section 98

The section states that the right of private defence depends upon the wrongful act. For example, if a lunatic or unsound person attacks a person, the person has a right of private defence. The incapacity of a lunatic or unsound person to understand the act or absence of mens rea does not affect the right of private defence.

Section 99

Section 99 provides for limitations on the exercise of private defence. There is a presumption that public servants act according to law.

Clause 1

Clause 1 of Section 99 states about the acts of the public servant. No right of private defence is available against an act done by a public servant under the following conditions:

  1. An act is done in good faith
  2. An act was done by the public servant under the colour of his office
  3. The act is of the nature that it did not cause apprehension of death or grievous hurt
  4. Act not justifiable by law

This can be understood by an illustration that if a police officer acting in good faith under colour of his office but without authority, arrests a person, then the arrested person is not entitled to the right of defence against the police officer.

Clause 1 has to be read with Explanation 1. Explanation 1 provides protection to those persons who were not aware of the fact that the person dealing with them was a public servant.

Clause 2

Clause 2 of Section 99 states the acts under the direction of a public servant. No right of private defence is available against an act done by a person under the direction of a public servant under the following conditions:

  1. An act is done in good faith
  2. The public servant must be acting under the colour of his office
  3. The direction may not be strictly justifiable by law
  4. The act is of such a nature that it did not cause reasonable apprehension of death or grievous hurt

Explanation 2 has to be read with Clause 2. Explanation 2 states that a person is not deprived of the right to private defence if he was not aware of the fact that the person dealing with him was acting under the directions of a public servant.

Clause 3

If there is time to recourse to the public authorities for protection, no right of private defence lies. In the case of ‘Jairam Mahton v. Emperor4, the court held that if there is reasonable opportunity to redress the issue to public authorities, then, no man has right to take the law into his own hands.

Clause 4

The right of private defence is not available to those who inflict more harm than necessary for defence. In the case of ‘Queen v. Fukeera Chamar5’, a thief was struck with pole five times on the neck. The court held that the accused was convicted of culpable homicide not amounting to murder. It was said that the act done by the accused was more harm than was necessary.

Section 100

The right of private defence extends to causing of death only when it comes under Section 100. The conditions where the right to private defence of the body extends to causing of death are as follows:

  • Such assault that can cause reasonable apprehension of death.
  • Such assault that can cause reasonable apprehension of grievous hurt.
  • Assault with the intention of committing rape, gratifying unnatural lust, kidnapping, abducting, or wrongful confinement of a person.
  • Act of throwing or administering acid or attempt of administering acid.

In the case of ‘Vishwa Nath v. State of Uttar Pradesh6’, the Supreme Court held that Vishwa Nath had the right of private defence of the body of his sister against an assault by her husband with the intention of abducting her by force. The right extended to causing death.

Section 101

The section states that if the offence is not under any of the offences provided under Section 100, then right of private defence does not extend to causing of death. But, it can extend to voluntarily causing harm other than death to the assailant. Section 101 operates with subject to the limitations provided under Section 99.

Section 102

The section provides that the right of private defence of body commences as soon as the reasonable apprehension of danger arises and it continues as long as such apprehension of danger continues. It is not necessary that an actual offence must have been committed.

Section 103

The right of private defence of property extends to causing death in the following cases:

  • Robbery
  • Housebreaking by night
  • Mischief by fire on building, tent or vessel used as a human dwelling or for custody of property
  • Theft, mischief, house trespass under such circumstances which cause reasonable apprehension of death or grievous hurt
Section 104

The section states that if the offence is not under any of the offences provided under Section 103, then right of private defence does not extend to causing of death. But, it can extend to voluntarily causing harm other than death to the wrong-doer. Section 104 operates with subject to the limitations provided under Section 99.

Section 105

This section provides five clauses.

Clause 1 states that right commences when there is the commencement of reasonable apprehension of danger to property. Clause 2 states that the right against theft continues until the offender has effected his retreat with the property or assistance of public authorities is obtained or property has been recovered.

Clause 3 states that right against robbery continues as long as the offender causes or attempts to cause death or hurt or wrongful restraint or fear of such acts continues.

Clause 4 states that right against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

Clause 5 states that right against house-breaking by night continues as long as house trespass continues.

Section 106

The circumstances in which the right of private defence of the body can extend to causing harm to innocent persons are given under Section 106. The circumstances are where there is a reasonable apprehension of death or of harm which is not lesser than death.

In the case of ‘State of Karnataka v. Madesha7’, the court held that injury to innocent persons in the exercise of the right of defence is excusable.

Hence, these are the legal provisions of ‘Private Defence’.

CONCLUSION

Self-help is very important. The Supreme Court has also observed in the case ‘Surjit Singh v. State of Punjab, 1996 (2) SCC 336’ that self-preservation of one’s life is a necessary element of the right of life enshrined in the Article 21 of the Constitution of India. The importance of the right to self-preservation has been provided as a right of private defence in criminal law. Hence, the provisions of private defence are of great importance.

SOURCE:

1 S.N. Mishra: Indian Penal Code, pg 235, Central Law Publication, Nineteenth Edition, 2014

2(2009) 2 Cri. L.J. 2065 (S.C.)

31988 Cri. L.J. 188 (S.C.)

4 35 Cal. 103

5 6 W.R. (Cr.) 50

6 A.I.R. 1960 S.C. 67

7 A.I.R. 2007 S.C. 2917

Books referred:

  1. Ratanlal & Dhirajlal: The Indian Penal Code (PB) 36th Edition, Lexis Nexis, 2020
  2. N. Mishra : The Indian Penal Code, Nineteenth Edition, Central Law Publications, 2014
This blog is written by Jyotsna Singh, Banasthali Vidyapith

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