Private Defence: A Right Available To All People In India




Private Defence: A Right Available To All People In India

Section 96 to 106 of the penal code states the law relating to the
right of private defence of person and property. The provisions
contained in these sections give authority to a man to use necessary
force against an assailant or wrong-doer for the purpose of protecting
one's own body and property as also another's body and property when
immediate aid from the state machinery is not readily available and in
so doing he is not answerable in law for his deeds. Section 97 says
that the right of private defence is of 2 types:-
(i) Right of private defence of body,
(ii) Right of private defence of property.

Body may be one's own body or the body of another person and likewise
property may be movable or immovable and may be of oneself or of any
other person. Self-help is the first rule of criminal law. The right
of private defence is absolutely necessary for the protection of one's
life, liberty and property. It is a right inherent in a man. But the
kind and amount of force is minutely regulated by law. The use of
force to protect one's property and person is called the right of
private defence.

Nature Of The Right
It is the first duty of man to help himself. The right of self-defence
must be fostered in the Citizens of every free country. The right is
recognised in every system of law and its extent varies in the inverse
ratio to the capacity of the state to protect life and property of the
subject( citizens). It is the primary duty of the state to protect the
life and property of the individuals, but no state, no matter how
large its resources, can afford to depute a policeman to dog the steps
of every rouge in the country. Consequently this right has been given
by the state to every citizen of the country to take law into his own
hand for their safety. One thing should be clear that, there is no
right of private defence when there is time to have recourse to the
protection of police authorities. The right is not dependent on the
actual criminality of the person resisted. It depends solely on the
wrongful or apparently wrongful character of the act attempted, if the
apprehension is real and reasonable, it makes no difference that it is
mistaken. An act done in exercise of this right is not an offence and
does not, therefore, give rise to any right of private defence in
return.


Section 96. 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 in return.
The right of self-defence under Section 96 is not absolute but is
clearly qualified by Section 99 which says that the right in no case
extends to the inflicting of more harm than it is necessary for the
purpose of defence. It is well settled that in a free fight, no right
of private defence is available to either party and each individual is
responsible for his own acts. While it is true that law does not
expect from the person, whose life is placed in danger, to weigh, with
nice precision, the extent and the degrees of the force which he
employs in his defence, it also does not countenance that the person
claiming such a right should resort to force which is out of all
proportion to the injuries received or threatened and far in excess of
the requirement of the case. The onus of proving the right of private
defence is upon the person who wants to plead it. But an accused may
be acquitted on the plea of the right of private defence even though
he has not specifically pleaded it. Courts are empowered to exempt in
such cases. It must be borne in mind that the burden of proving an
exception is on the accused. It is not the law that failure to setup
such a defence would foreclose this right to rely on the exception
once and for all. It is axiomatic that burden on the accused to prove
any fact can be discharged either through defence evidence or even
through prosecution evidence by showing a preponderance of
probability. It is true that no case of right of private defence of
person has been pleaded by the accused not put forth in the
cross-examination to the eye-witnesses but it is well settled that if
there is a reasonable probability of the accused having acted in
exercise of right of private defence, the benefit of such a plea can
still be given to them. The right of private defence, as the name
suggests, is an act of defence and not of an offence. Consequently, it
cannot be allowed to be used as a shield to justify an aggression.
This requires a very careful weighing of the facts and circumstances
of each case to decide as to whether the accused had in fact acted
under this right. Assumptions without any reasonable basis on the part
of the accused about the possibility of an attack do not entitle him
to exercise this right. It was held in a case that the distance
between the aggressor and the target may have a bearing on the
question whether the gesture amounted to assault. No precise yardstick
can be provided to fix such a distance, since it depends upon the
situation, the weapon used, the background and the degree of the
thirst to attack etc.

The right of private defence will completely absolve a persons from
all guilt even when he causes the death of another person in the
following situations, i.e
• If the deceased was the actual assailant, and
• If the offence committed by the deceased which occasioned the cause
of the exercise of the right of private defence of body and property
falls within anyone of the six or four categories enumerated in
Sections 100 and 103 of the penal code.

Thangavel case:-
The general proverb or adage that "necessity knows no law" does not
find a place in modern jurisprudence. The right of self-preservation
is inherent in every person but to achieve that end nothing could be
done which militates against the right of another person. In the other
words, "society places a check on the struggle for existence where the
motive of self-preservation would dictate a definite aggression on an
innocent person" .

Kamparsare vs Putappa:-
Where a boy in a street was raising a cloud of dust and a passer-by
therefore chased the boy and beat him, it was held that the passer-by
committed no offence. His act was one in exercise of the right of
private defence.

Section 97.Right of private defence of the body and of Property:-
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 for criminal trespass.

This Section limits exercise of the right of private defence to the
extent of absolute necessity. It must not be more than necessary for
defending aggression. There must be reasonable apprehension of danger
that comes from the aggressor in the form of aggression. This Section
divides the right of private defence into two parts, i.e. the first
part deals with the right of private defence of person, and the second
part with the right of private defence of property. To invoke the plea
of right of private defence there must be an offence committed or
attempted to be committed against the person himself exercising such a
right, or any other person. The question of the accrual of the right
of the private defence, however, does not depend upon an injury being
caused to the man in question. The right could be exercised if a
reasonable apprehension of causing grievous injury can be established.
If the threat to person or property of the person is real and
immediate, he is not required to weigh in a golden scale the kind of
instrument and the force which he exerts on the spur of the moment.
The right of private defence extends not only to the defence of one's
own body and property, as under the English law, but also extends to
defending the body and property of any other person. Thus under
section 97 even a stranger can defend the person or property of
another person and vice versa, whereas under the English law there
must be some kind of relationship existing such as father and son,
husband and wife, etc., before this right may be successfully
exercised. A true owner has every right to dispossess or throw out a
trespasser, while the trespasser is in the act or process of
trespassing but has not accomplished his mission; but this right is
not available to the true owner if the trespasser has been successful
in accomplishing possession and his success is known by the true
owner. In such circumstances the law requires that the true owner
should dispossess the trespasser by taking recourse to the remedies
available under the law. The onus of establishing plea of right of
private defence is on the accused though he is entitled to show that
this right is established or can be sustained on the prosecution
evidence itself. The right of private defence is purely preventive and
not punitive or retributive. Once it is held that the party of the
accused were the aggressors, then merely because a gun was used after
some of the party persons had received several injuries at the hands
of those who were protecting their paddy crop and resisting the
aggression of the party of the accused, there can be no ground for
taking the case out of Section 302, I.P.C., if otherwise the injuries
caused bring the case within the definition of murder.


Chotelal vs State:-
B was constructing a structure on a land subject to dispute between A
and B. A was trying to demolish the same. B therefore assaulted A with
a lathi. It was held that A was responsible for the crime of waste and
B had therefore a right to defend his property.

Parichhat vs State of M.P:-
A lathi blow on his father's head, his son, the accused, gave a blow
with a ballam on the chest of the deceased. The court decided that the
accused has obviously exceeded his right of private defence.
Section 98. Right of private defence against the act of a person of
unsound mind, etc:-

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.


Illustrations:-
• 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.
• A enters by night a house which he is legally entitled to enter Z,
in good faith, taking A for a house breaker, attacks A. Here Z, by
attacking A under this misconception, commits no offence. But A has
the same right of private defence against Z, which he would have if Z
were not acting under that misconception.

This Section lay down that for the purpose of exercising the right of
private defence, physical or mental capacity of the person against
whom it is exercised is no bar. In other words, the right of private
defence of body exists against all attackers, whether with or without
mens rea. The above mentioned illustration are pointing a fact that
even if an attacker is protected by some exception of law, that does
not diminish the danger and risk created from his acts. That is why
the right of private defence in such cases also can be exercised, or
else it would have been futile and meaningless.


Section 99. Act against which there is no right of private defence:-
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 a public servant acting in good
faith under colour of his office, though that act, may not be strictly
justifiable by law.

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 colour 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 to Private
defence in no case extends to the inflicting of more harm that 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, or attempted to be done, by a public
servant, as such, unless he knows or has reason to believe, that the
person doing the act is such public servant.

Explanation 2: - A 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, or unless such
person states the authority under which he acts, or if he has
authority in writing, unless he produces such, demanded.
Section 99 lays down that the conditions and limits within which the
right of private defence can be exercised. The section gives a
defensive right to a man and not an offensive right. That is to say,
it does not arm a man with fire and ammunition, but encourage him to
help himself and others, if there is a reasonable apprehension of
danger to life and property. The first two clauses provide that the
right of private defence cannot be invoked against a public servant or
a person acting in good faith in the exercise of his legal duty
provided that the act is not illegal. Similarly , clause three
restricts the right of private defence, if there is time to seek help
of public authorities. And the right must be exercised in proportion
to harm to be inflicted. In other words , there is no right of private
defence :
• Against the acts of a public servant; and
• Against the acts of those acting under their authority or direction;
• Where there is sufficient time for recourse to public authorities; and
• The quantam of harm that may be caused shall in no case be in excess
of harm that may be necessary for the purpose of defence.

The protection to public servants is not absolute. It is subject to
restrictions. The acts in either of these clauses must not be of
serious consequences resulting in apprehension of causing death or of
grievous hurt which would deprive one of his right of private defence.

To avail the benefit of those clauses ( i ) the act done or attempted
to be done by a public servant must be done in good faith; ( ii ) the
act must be done under the colour of his office; and ( iii ) there
must be reasonable grounds for believing that the acts were done by a
public servant as such or under his authority in the exercise of his
legal duty and that the act is not illegal. Good faith plays a vital
role under this section. Good faith does not require logical
infallibility but due care and caution as defined under Section 52 of
the code.

Emperor vs Mammun:-
The accused, five in number, went out on a moonlit night armed with
clubs, and assaulted a man who was cutting rice in their field. The
man received six distinct fractures of the skull-bones besides other
wounds and died on the spot. The accused on being charged with murder
pleaded right of private defence of their property. Held under Section
99 there is no right of private defence in cases where there is time
to have recourse to the protection of the public authorities.


Public prosecute vs Suryanarayan:-
On search by customs officers certain goods were found to have been
smuggled from Yemen into Indian Territory. In course of search the
smugglers attacked the officers and injured them. They argued that the
officers had no power to search as there was no notification declaring
Yemen a foreign territory under Section 5 of the Indian Tariff Act. It
was held, that the officers had acted in good faith and that the
accused had no right of private defence.

Section100. 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, to the voluntary
causing of death or of any other harm to the assailant, if the offence
which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely :--

First-Such an assault as may reasonably cause the apprehension that
death will otherwise be the consequence 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 of committing 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.

To invoke the provisions of sec 100, I.P.C., four conditions must exist:-
• That the person exercising the right of private defense must be free
from fault in bringing about the encounter.
• There must be present an impending peril to life or of great bodily harm
• There must be no safe or reasonable mode of escape by retreat;
• There must have been a necessity for taking the life.

Moreover before taking the life of a person four cardinal conditions
must be present:-
(a) the accused must be free from fault in bringing the encounter;
(b) presence of impending peril to life or of great bodily harm,
either real or apparent as to create an honest belief of existing
necessity;
(c) no safe or reasonable mode of escape by retreat; and
(d) a necessity for taking assailant's life.


Yogendra Moraji vs. State :-
The supreme court through Sarkaria, J. discussed in detail the extent
and the limitations of the right of private defence of body. One of
the aspects emphasized by the court was that there must be no safe or
reasonable mode of escape by retreat for the person confronted with an
impending peril to life or of grave bodily harm except by inflicting
death on the assailant. This aspect has create quite a confusion in
the law as it indirectly suggests that once should first try to see
the possibility of a retreat than to defend by using force which is
contrary to the principle that the law does not encourage cowardice on
the part of one who is attacked. This retreat theory in fact is an
acceptance of the English common law principle of defence of body or
property under which the common law courts always insisted to look
first as to whether the accused could prevent the commission of crime
against him by retreating.

Nand kishore lal case :-
Accused who were Sikhs, abducted a Muslim married woman and converted
her to Sikhism. Nearly a year after the abduction, the relatives of
the woman's husband came and demanded her return from the accused. The
latter refused to comply and the woman herself expressly stated her
unwillingness to rejoin her Muslim husband. Thereupon the husband's
relatives attempted to take her away by force. The accused resisted
the attempt and in so doing one of them inflicted a blow on the head
of the woman's assailants, which resulted in the latter's death. It
was held that the right of the accused to defend the woman against her
assailants extended under this section to the causing of death and
they had, therefore, committed no offence.

Section101. When such right extends to causing any harm other than death:-
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.


Mohinder Pal Jolly v. State of Punjab :-
Workers of a factory threw brickbats and the factory owner by a shot
from his revolver caused the death of a worker, it was held that this
section did not protect him as there was no apprehension of death or
grievous hurt.

Section102. Commencement and continuance of the right of private
defence of the body:-
The right of private defence of the body 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. The apprehension of danger must be reasonable, not
fanciful. For example, one cannot shoot one's enemy from a long
distance, even if he is armed with a dangerous weapon and means to
kill. This is because he has not attacked you and therefore there is
no reasonable apprehension of attack. In other words, there is no
attack and hence no right of private defence arises. Moreover the
danger must be present and imminent.

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 gave 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.

Section103. When the right of private defence of property extends to
causing death:-
The right of private defence of property extends, under the
restrictions mentioned in Section 99, to the voluntary causing of
death or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which, occasions the
exercise of the right, be an offence of any of the descriptions
hereinafter enumerated,
namely; -
First-Robbery;
Secondly-House-breaking by night;
Thirdly-Mischief by fire committed on any building, tent or vessel,
which building, tent of vessel is used as a human dwelling, or as a
place for the custody of property;
Fourthly-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.


Section 103 provides the right of private defence to the property
whereas Section 100 is meant for exercising the right of private
defence to the body of a person. It justifies homicide in case of
robbery, house breaking by night, arson and the theft, mischief or
house trespass which cause apprehension or grievous harm. If a person
does not have possession over the property, he cannot claim any right
of private defence regarding such property. Right to dispossess or
throw out a trespasser is not available to the true owner if the
trespasser has been successful in accomplishing his possession to his
knowledge. This right can be only exercised against certain criminal
acts which are mentioned under this section.


Mithu Pandey v. State :-
Two persons armed with 'tangi' and 'danta' respectively were
supervising collection of fruit by labourers from the trees which were
in the possession of the accused persons who protested against the
illegal act. In the altercation that followed one of the accused
suffered multiple injuries because of the assault. The accused used
force resulting in death. The Patna High Court held that the accused
were entitled to the right of private defence even to the extent of
causing death as the forth clause of this section was applicable.

Jassa Singh v. State of Haryana :-
The Supreme court held that the right of private defence of property
will not extend to the causing of the death of the person who
committed such acts if the act of trespass is in respect of an open
land. Only a house trespass committed under such circumstances as may
reasonably caused death or grievous hurt is enumerated as one of the
offences under Section 103.

Section104. When such right extends to causing any harm other than death:-
If the offence, the committing of which, or the attempting to commit
which, occasions the exercise of the right of private defence, be
theft, mischief, or criminal trespass, not of any of the descriptions
enumerated in the last preceding section, that right 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
wrong -doer of any harm other than death.

This Section cannot be said to be giving a concession to the accused
to exceed their right of private defence in any way. If anyone exceeds
the right of private defence and causes death of the trespasser, he
would be guilty under Section 304, Part II. This Section is corollary
to Section 103 as Section 101 is a corollary to Section 100.

V.C.Cheriyan v. State :-
The three deceased person along with some other person had illegally
laid a road through the private property of a Church. A criminal case
was pending in court against them. The three accused persons belonging
to the Church put up barricades across this road with a view to close
it down. The three deceased who started removing these barricades were
stabbed to death by the accused. The Kerela High Court agreed that the
Church people had the right of private defence but not to the extent
of causing death of unarmed deceased person whose conduct did not fall
under Section 103 of the Code.


Section105. Commencement and continuance of the right of private
defence of property:-
The Right of private defence of property commences when a reasonable
apprehension of danger to the 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, or the property has been recovered.The right
of private defence of property against robbery continues as long as
the offender causes or attempts to cause to any person death or hurt
or wrongful restraint of 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 as long as the offender continues in the
commission of criminal trespass or mischief.
• The right of private defence of property against house-breaking by
night continues as long as the house-trespass which has been begun by
such house-breaking continues.

This right can be exercised if only there is no time to have recourse
of public authorities. As soon as the trespass is accomplished
successfully the true owner of the property loses right of private
defence to protect property. No right of private defence to protect
property is available to a trespasser when disputed land is not at all
in possession of him.


Section106. Right of private defence against deadly assault when there
is risk of harm to innocent person:-
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 or private defence extends to
the running of that risk.

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

This section removes an impediment in the right of private defence.
The impediment is the doubt in the mind of the defender as to whether
he is entitled to exercise his right even when there is a possibility
of some innocent persons being harmed by his act. The Sections says
that in the case of an assault reasonably causing an apprehension of
death, if the defender is faced with such a situation where there
exists risk of harm to an innocent person, there is no restriction on
him to exercise his right of defence and he is entitled to run that
risk.

Conclusion
To justify the exercise of this right the following are to be examined:-
• The entire accident
• Injuries received by the accused
• Imminence of threat to his safety
• Injuries caused by the accused
• Circumstances whether the accused had time to recourse to public authorities.
Right of private defence is a good weapon in the hand of every citizen
to defend himself. This right is not of revenge but toward the threat
and imminent danger of an attack. But people can also like misuse this
right. Its very difficult for court to find out whether this right had
been exercised in good faith or not.

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