What is the Right of Private Defence of a Person?

ABSTRACT

Self-help is the first rule of criminal law. The important law relating to the right to private defence of body and property is laid down in section 96 to 106 of the Indian Penal Code, 1860. It is the primary duty of the State to protect the life and property of citizens. But the fact is that the State cannot watch each and every activity of the citizens. 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 the act, may not be strictly justifiable by law.

DEFINITION OF PRIVATE DEFENCE:

In general, the private defense is an excuse for any crime against the person or property. It serves as an asocial purpose. It is based on the cardinal principle that it is the primary duty of a man to help himself. It not only restrains bad characters but also encourages the right spirit in a free citizen.

Bentham, in his Principles of the Penal Code, says :

The right of defence is absolutely necessary. The vigilance of Magistrates can never make up for the vigilance of each individual on his own behalf. The fear of the law can never restrain bad men as the fear of the sum total of individual resistance. Take away these rights and you become in so.

PROPOSITIONS

The whole of self-defence rests on four propositions :

1. That, society undertakes, and in the great majority of cases, is able to protect private persons against unlawful attacks upon their person and property.

2. That, where its aid can be obtained, it must be reported to.

3. That, where its aid cannot be obtained, the individual may do everything that is necessary to protect himself.

4. But that the violence used must be in proportion to the injury to be averted, and must note employed for the gratification of vindictive or malicious feelings.

RIGHT OF PRIVATE DEFENCE OF THE BODY

Section 97 of IPC

Every person has a right, subject to the restrictions contained in section 99 to defend his own body, and the body of any other person, against any offence which is affecting the human body, and if in case of movable or immovable property an offence is falling under the definition of theft, robbery, mischief or criminal trespass or there is a commitment to do this thing then the right of private defence is applicable.

Section 98 of IPC

For the purpose of exercising the right of private defense, the physical or mental capacity of the person against whom the right is exercised is no bar. In other words, the right of defense of the body exists against all attackers whether with or without mens rea.

For example – Suppose A is a person who enters by night in a house where he is legally entitled to enter. B, in good faith, taking A as house-breaker, attacks A. Here B, by attacking A under the misconception, commits no offence. But A has the same right of private defence against B, which he would have if B were not acting under this misconception.

Section 100 of IPC

That there are six acts of aggression, so serious in their nature, that the law gives full authority to the defender even to cause the death of assailant which are-

1. An assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
2. 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, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities of his release.

Section 102

the right of self-defence commences as soon as a reasonable apprehension of danger of 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.

In Jai Dev v. State of Punjab (AIR 1963 SC 340: (1963) 3 SCR 489: 1964) 2 SCJ 272 : (1963)1 Cr LJ 495; the Supreme Court held that the right of private defence against an assault causing apprehension of death or grievous hurt comes to an end so soon as the threat of assault has ceased and the apprehension of danger has been entirely removed. If the accused file rifle shots at the assaulters when all of them have run away, and shoot down persons standing at a long distance away, they cannot claim the right of private defence and are guilty of murder.

RIGHT OF PRIVATE DEFENCE OF THE PROPERTY

Section 103

Under section 103 the right of private defence of property extends, subject to the restrictions mentioned in section 99, to voluntary causing of death, in case of robbery, house-breaking by night, theft or mischief, when such theft or mischief is committed in such circumstances as may reasonably cause an apprehension that death or grievous hurt will result if such right of private defence is not exercised.

Section 104

This section restricts the right of private defence of property, as section 101 puts a check on the right to private defence of the body, to causing any harm short of death in the exercise of the right of private defence, be theft, be mischief or criminal trespass, and not of any of the descriptions enumerated in section 103, the right of defence extends only to the voluntary causing of any harm other than death.

Section 105

This section, like section 102, fixes the time when the right to private defence of property commences as soon as a reasonable apprehension of danger to the property commences. The continuance depends upon the nature of the offence. In cases of theft, it continues until the offender has effected his retreat with the property, or the assistance of public authorities is obtained, or the property has been recovered. In cases of robbery, it continues as long as the offender causes or attempts to cause any person death or hurt, or as long as instant personal restraint continues. In cases of criminal trespass or mischief, the right continues so long as the offender continues in the commission of criminal trespass or mischief.

LIMITATIONS TO THE USE OF THE RIGHTS OF PRIVATE DEFENCE

The right of private defence of body and property declared in section 96 and section 97 and further articulated with different contours in section 98 and section 100 to section 106 is circumscribed by the limitations stated in section 99.

Section 99 of the Indian penal Code, 1860 lays the condition and limits which the right of private defence can be exercised. It gives a defensive right to a man and not an offensive right, which means it does not arm a man with fire and ammunition but encourages him to help himself and others if there is a reasonable apprehension of danger to life and property.

There is no right of private defense:

1. If a public servant does not cause reasonable apprehension of death or of grievous hurt to the person or damage to the property.
2. If there is sufficient time for recourse to public authorities.
3. Quantum of harm that may not be caused shall in so case be in excess of harm that may be necessary for the purpose of defence.

Explanation – X attacks Y with a knife. Y in self defense pulls out a revolver. It is not an offence on the part of Y. X cannot say, “Y was about to shoot me, so I killed him.” It will be seen in this case that if X had not started the trouble, nothing would have happened.

Case references – Few important cases are,

In Gangadas v. State of Rajasthan (1975 Cri. L. J. 1445), the Rajasthan High Court has observed that the omission to take the plea of private defence in the committing court is not a bar to taking such plea at the trial, or even in appeal.

In Dilbaghsingh v. State of U.P.(19800 4 S.C. 402), was declared that the right of private defence is not available to the initial aggressors.

In Balajit Singh v State of Uttar Pradesh (AIR 1976 SC 2273), the accused party was in possession of some disputed land. The complainant’s party trespassed into the land armed with lathis. The accused party tried to protect the land from trespass, as a result of which the accused assaulted the deceased and caused as many as 72 injuries which resulted in the death of the deceased. It was held that the accused exceeded his right of self-defence.

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