A person has the right to defend himself against injury or restraint. A person also has the right to protect his property from an act which may constitute an offence under the definition of theft, robbery, mischief or criminal trespass or an attempt to commit the aforesaid offence. Bentham rightly said, “The right of defense is absolutely necessary. The vigilance of the Magistrates can never make up for vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total to individual resistance. Take away this right and you become, in so doing, the accomplice of all bad men.”
Brief Overview of The Right of Private Defence
The right of private defence is the right to protect one’s own person and property against unlawful aggression of others. This right is a natural right and is based on the cardinal principle that it is the duty of a man to aid himself. It is pertinent to note that the right of private defence cannot be availed under any random circumstance. For instance, if the person has the means to approach the state for his protection, he cannot avail this defence. If that were permitted, civilians would start taking matters into their own hands and soon the legal system would turn into one big loophole per se.
The force used in exercising the right of private defence should be necessary and reasonable in the given circumstances. The right of private defence can only be availed against the assailant, wrongdoer or aggressor.
‘Reasonable apprehension’ and ‘Imminence of danger’ form a prerequisite of this right. Firstly, the accused must possess reasonable apprehension of harm to be inflicted upon him in order to exercise the right of private defence. Hence, the apprehension must be real and reasonable. Secondly, the said harm must be of imminent danger. Reasonable apprehension should be based upon some kind of conduct of the aggressor or the surrounding circumstances. In India, the right of private defence is covered under Section 96 to Section 106 of the Indian Penal Code (hereinafter “IPC”). Right of private defence creates an exception to criminal liability. Therefore, making it one of the most important topics to study in criminal law.
Section 96 of the IPC reads as: “Nothing is an offence which is done in the exercise of the right of private defence.”
This right is not absolute. There are certain restrictions to it which are laid down in Section 99 of the IPC. In case of a free fight, neither of the parties may plead the right of private defence. In Bachan Singh and others Vs. The State, 1969 P.L.R. 393 (P&H(DB) and Gaja Nand Vs. State of Uttar Pradesh, AIR 1954 (SC), 695, the court made an attempt to give the meaning for free fight. The court enumerated that a fight is a free fight, when both sides mean to fight, from the start, go out to fight, and there is a pitched battle, in such a fight, the question of who attacks and who defends, is wholly immaterial and depends upon the tactics, adopted by the rival commanders.
Although, a person can be acquitted on the ground of exercising the right of private defence even if the person may have not specifically pleaded it, the onus of proving the right of private defence lies upon the person pleading it. Although, it is self-explanatory, the right of private defence can only be availed if it is an act of defence, not an offence.
Section 97 of the IPC reads as follows: “Every person has a right, subject to the restrictions contained in section 99, to defend— First—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.”
Hence, it can be understood that Section 97 bifurcates the right of private defence into two parts – (a) against body and (b) against property.
In order to invoke the plea of right of private defence, the offence must be committed or an attempt must be made to commit the offence against the person exercising this right, or any other person. Therefore, under the aforesaid section, a stranger can exercise the right of private defence to defend another person (his body). In the case of Crown v Ross,[i] the accused killed his father as he believed him to be cutting his mother’s throat. It was held that the accused had the right to protect his mother against his father’s act of cutting his mother’s throat.
Every person has the right to defend immovable or movable property that belongs to him or some other person against an offence which amount to theft, robbery, mischief or criminal trespass, or an attempt to commit theft, robbery, mischief or criminal trespass. Therefore, under the aforesaid section, a stranger can exercise the right of private defence to defend another person’s property.
It must be noted that this right is subjected to restrictions contained in Section 99 of the IPC.
Section 98 of the IPC reads as follows: “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 were that offence.”
This section provides for the application of the right to private defence as against intoxicated person, unsound persons or due to youth or lack of maturity of understanding the outcome of one’s act. For instance, if W is under the influence of madness and attempts to kill Y; W would be guilty of no offence. Additionally, Y would have the same right of private defence which he would have if W were sane. Hence, it can be understood that this section offers the right of private defence to people against the acts of people who may be of unsound mind, intoxicated, etc.
Section 99 lays down the restrictions to the right of private defence and may be divided into two parts:
Act of Public Servant
The first part of Section 99 as given in the IPC states “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 colour of his office, though that act, may not be strictly justifiable by law.”
The second part of Section 99 states “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 the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.”
Therefore, the right of private defence may not be available if the act of the public servant or the act done on the basis of the directions given by the public servant acting in good faith. Nonetheless, where the act of the public servant creates an apprehension of causing death or grievous hurt or when the public servant does not act in good faith under the colour of his office, this right may be invoked. Section 99 may only hold ground if the person exercising the right of private defence is aware that the other person is a public servant. In cases where some person is acting under the directions of a public servant, he may state the authority under which he acts, or if he has authority in writing, he may produce the same if asked for.
The third part of Section 99 states “There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.” Hence, when a person has sufficient time to approach public authorities, he cannot exercise his right of private defence. If there is enough time to seek help from public authorities, one cannot resort to self-help.
Section 99 also lays down the limit to which the right of private defence is to be exercised. It states that one may not inflict more harm than necessary. Therefore, the measure of self-defence must always be proportionate to the quantum of force used by the attacker and which is necessary to repeal such an attack. The limit of force may be subjective and may differ in each case.
Section 100 of the IPC deals with instances where the exercise of the right of private defence causes death. Again, this section is subjected to Section 99. According to the aforementioned section, the assailant’s death may be caused due to exercise of private defence, provided the assailant may commit an offence of the following nature:
- An assault which may reasonably give rise to the apprehension that death or grievous hurt will otherwise be the consequence of such assault.
- An assault with the intention of committing rape.
- An assault with the intention of gratifying unnatural lust.
- An assault with the intention of kidnapping or abducting.
- 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.
- 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.
Section 101 of the IPC reads as follows: “If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.”
This Section provides that unless the offence that led to the exercise of the right to private defence is not one mentioned in Section 100, then the person seeking pleading under this defence may not cause death of the assailant but may cause any harm apart from causing death. This section is subject to limitations laid down in Section 99.
Section 102 of the IPC enumerates upon the commencement and the continuation of the right of private defence of the body. As laid down in the aforementioned section, the right of private defence of the body commences when a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence even if the offence may not have been committed. Such a right continues as long as such apprehension of danger to the body continues. In the case of Hari Meghji v, State of Gujarat[ii], the Apex Court held that in case where the accused continued to assault the deceased after he had fallen and was therefore, rendered harmless, the plea of private defence would not be available to him.
Section 103 provides that the right of private defence may result in the death of the wrongdoer, if the offence which resulted in the accused resorting to the right of private defence is one of the following:
- House-breaking by night
- 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
- Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
This section is subject to restrictions laid down in Section 99.
Section 104 of the IPC provides that where the offence that led to the exercise of the right to private defence is theft, mischief, or criminal trespass and not one mentioned in Section 103, then the person pleading under this defence may not cause death of the wrongdoer but may cause any harm apart from causing death. This section is subject to limitations laid down in section 99.
Section 105 of the IPC enumerates upon the commencement and the continuation of the right of private defence of the property. This right commences when a reasonable apprehension of danger to the property commences. This right against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. This right against robbery continues as long as the offender causes or attempts to cause to any person, death or hurt or wrongful restraint or till the fear of instant death or of instant hurt or of instant personal restraint continues. This right against criminal trespass or mischief continues till the offender continues in the commission of criminal trespass or mischief. This right against house-breaking by night continues till the house-trespass which has been begun by such house-breaking continues.
Section 106 of the IPC enumerates upon the right of private defence against deadly assault when there is risk of harm to innocent person. The aforementioned Section reads as follow: —“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 of harm to an innocent person, his right of private defence extends to the running of that risk.” In simple terms, it means that if while practicing one’s right to private defence there lies a small probability of hurt being inflicted upon innocent people and he cannot effectually exercise his right without hurting such people, he may commit no offence by hurting such people.
The right of Private Defence holds a significant role in Criminal Law. In circumstances where a party may have simply defended himself or his property or another person or another’s property, subject to the laws laid down in Section 96 to 106 of the IPC, he may actually benefit by pleading the Right of Private Defence.
The Indian Penal Code, 1860
[i] 1884, 15 Cox 540
[ii] AIR 1983 SC 488
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