Section 96 to 106 of the Indian Penal Code (IPC), 1860, has provision for protecting the life and property of oneself or others through the right of private defence against assaults and unlawful acts of others. The right of private defence gives the right to defend one’s life or some other person’s life and property belonging to himself or of any other person against any act of aggressor. In such cases, if the right to private defence is not pleaded the act of defending would amount to a crime.
RIGHT OF PRIVATE DEFENCE:
The provisions contained in IPC authorizes a person to use necessary force against an assailant or wrong-doer for protecting one’s own body and property or another’s body and property. This right is exercised when immediate help from the state machinery is not readily available and without using force a person would not be able to avoid the unlawful act of the assailant. Such acts of defence do not make the person defending answerable in law for his deeds. This is the right of private defence.
BURDEN OF PROOF:
As per Section 105 of the Indian Evidence Act, 1872 the burden of proof is on the accused taking the plea of self-defence. While considering the plea of private defence the Court contends itself that the mischief brought about by the denounced very important for either averting the assault or for hindering further sensible fear arising from threat to life or property from his side.
SECTION 96 of IPC- THE RIGHT OF PRIVATE DEFENCE:
This Section states that any harm is done or injury caused to any person while protecting himself from the external force or aggression resulting in the harm is not an offense as per the Indian Penal Code 1860. The object of providing this right to every citizen of India was to remove their fear in taking any step generally illegal for protecting themselves or their property due to the fear of prosecution.
Section 97 of IPC- EXERCISE OF THE RIGHT OF PRIVATE DEFENCE FOR PROTECTION OF BODY AND PROPERTY:
Every individual has a right to defend-
First-Himself or any other person against any offence affecting the human body;
Secondly-Movable or Immovable property belonging to himself or any other person, against any action of an aggressor which amounts to 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 of Indian Penal Code.
However, the right to private defence is subject to the restrictions contained in Section 99.
This Section provides that the right of private defence should be exercised to the extent of absolute necessity. The force used for defending the aggression of the other must not be more than what is necessary. The use of this right is valid only if a reasonable apprehension of causing grievous injury can be established. Section 97 allows even a stranger to defend the person or property of another person.
Section 98 of IPC- RIGHT OF PRIVATE DEFENCE AGAINST THE PERSON OF UNSOUND MIND, ETC:
Any action of a person amounting to an offence is not regarded as an offence because of young age, the want of maturity of understanding, misunderstanding, the unsoundness of mind, or the intoxication of the person committing that act.
C, under the influence of madness or intoxication, attempts to kill A; C is guilty of no offence. However, A has the same right of private defence which he would have if C were sane or not under intoxication.
Thus for using the right of private defence, the physical or mental capacity of the person against whom it is exercised is no bar. It can be used against all attackers, whether with or without wrongful intention.
Section 99 of IPC- RIGHT OF PRIVATE DEFENCE NOT AVAILABLE AGAINST THE FOLLOWING ACTS:
The right of private defence cannot be claimed against an act that does not make a person reasonably afraid of the apprehended danger of death or grievous hurt, if done, or attempted to be done, by a public servant or as per the instruction of a public servant who acted in good faith under color of his office.
When the person has ample time and opportunity to seek help from public authorities he has no right of private defence.
Further, the right of private defence does not authorize to inflict more harm than necessary for defending himself.
Every person has a right of private defence against the acts of the public servant unless he has knowledge or has sufficient reason to believe, that the person committing the said act is a public servant.
No person is deprived of the right of private defence against some action done, or attempted to be done, as per the instruction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such instruction, or unless such person says about the authority under which he acts, or shows his written authority if asked to show.
In the following cases the right of private defence cannot be used :
There is no right of private defence-
- Against any act done by a public servant; and
- Against the acts of those acting under the authority or instruction of a public servant;
- When there is ample time available to seek the help of public authorities; and
- The amount of harm that may be caused shall not be more than the harm that may be necessary for defending.
Section 100 of IPC- WHEN DEATH CAN BE CAUSED WHILE EXERCISING THE RIGHT OF PRIVATE DEFENCE OF BODY:
The right of private defence of the body extends, under the restrictions provided in Section 99 to the voluntary causing of death or of any other harm to the assailant, if-
There is an assault thereby creating fear in the mind of the victim that if he doesn’t exercise his right of private defence against the assailant then death will be the result of such assault;
There is an assault reasonably causing the apprehension that grievous hurt will otherwise be the consequence of such assault;
There is an assault to commit rape;
There is an assault to gratify unnatural lust;
There is an assault done for committing kidnapping or abduction;
There is an assault to wrongfully confine a person, cause a reasonable apprehension that he will not be able to have recourse to the public authorities for his release.
Section 101 of IPC- CAUSING ANY HARM OTHER THAN DEATH WHILE EXERCISING THE RIGHT OF PRIVATE DEFENCE OF BODY:
The right of private defence of the body extends to the voluntary causing to the assailant of any harm other than death, under the restrictions mentioned in Section 99 of IPC.
Mohinder Pal Jolly v. the State of Punjab:-
Workers of a factory threw brickbats on the owner and the factory owner in response shot from his revolver causing the death of a worker. The Court held that this section did not protect him as there was no apprehension of death or grievous hurt from the workers.
Section 102 of IPC- CASES IN WHICH THE RIGHT OF PRIVATE DEFENCE OF BODY COMMENCES:
As soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, the right of private defence commences. The right of private defence of the body arises even though offence may not have been committed and it continues until such apprehension of danger to the body continues.
Kala Singh case:-
In this case, the deceased person was strong and dangerous and had also murdered one person earlier entered into a quarrel with the accused, a weakling. He threw the accused on the ground, bit him, and pressed his neck. The accused after freeing himself from the clutches of the deceased took up a light hatchet and gave three blows on the deceased’s head. The deceased died three days later as a result of the injuries suffered by the blows. The Court held that the act of the deceased was aggressively raising a strong fear in the mind of the accused that he would be killed otherwise.
Section103 of IPC- CASES IN WHICH THE RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH:
Under the restrictions mentioned in Section 99 of IPC, the right of private defence of property extends to the voluntary causing death or any other harm to the wrong-doer, if the offence is either Robbery, House-breaking by night, Mischief by fire committed on any building, tent or vessel, which building that is used as a human dwelling, or as a place for the custody of property, Theft, mischief, or house-trespass causing reasonable apprehension that death or grievous hurt will be the consequence of such right of private defence is not exercised.
Section 104 of IPC- CAUSING ANY HARM OTHER THAN DEATH WHILE EXERCISING THE RIGHT OF PRIVATE DEFENCE OF PROPERTY:
If the offence, the committing of which, or the attempting to commit which, occasions the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions mentioned in Section 103 of IPC authorizes the victim to voluntary cause to the assailant any harm other than death. However, this right is subject to the restrictions stated in section 99 of IPC.
V.C.Cheriyan v. State:
The three deceased persons had illegally laid a road through the private property of a Church. The three accused persons belonging to the Church put up barricades across this road to close it down. The accused stabbed the three deceased to death who tried to remove the barricades. The Kerela High Court observed that although the Church people had the right of private defence but not to the extent of causing the death of the deceased person who was not armed and whose conduct did not fall under Section 103 of the IPC.
Section 105 of IPC- CASES IN WHICH THE RIGHT OF PRIVATE DEFENCE OF PROPERTY COMMENCES:
When a reasonable amount of fear of danger being caused to the property commences for protecting that property, the right of private defence of property commences.
In case of theft, the right of private defence of property continues to on go until the offender has withdrawn the property or the public authorities have arrived for helping, or the property has been regained from the thief.
In the case of Robbery, the right of private defence of property continues until the offender does or attempts to cause death or hurt or wrongful restraint or until the fear of either of these continues.
In case of criminal trespass or mischief, the right of private defence of property continues until the offender stops committing the offence.
In case of house-breaking by night, the right of private defence of property continues until the house-trespass continues which resulted in the house-breaking.
However, this right can be exercised if only there is no time to have the recourse of public authorities.
Section106 of IPC: RISK OF HARM TO INNOCENT PERSON WHILE EXERCISING THE RIGHT OF PRIVATE DEFENCE AGAINST DEADLY ASSAULT:
While exercising the right of private defence against an assault that has caused reasonable apprehension of death and when the defender cannot exercise that right without taking the risk of causing harm to an innocent person, his right of private defence extends to the running of that risk.
Z is attacked by a mob attempting to murder him. Z cannot effectually exercise his right of private defence without firing on the mob, and while firing he takes the risk of harming young children who are mingled with the mob. Z has committed no offence if harms any of the children while firing on the mob.
EXTENT OF RIGHT OF PRIVATE DEFENCE AND LIMITATIONS:
(1) As reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence the right of private defence commences.
(2) As it is not a punitive or retributive right, it does not extend to the inflicting of more harm than necessary for defence.
(3) The right extends to the killing of the aggressor in case of reasonable and imminent danger of the atrocious crimes given in the six clauses of Section 100 of IPC.
(4) The person who is confronted with imminent and immediate danger to life or of grave bodily harm having no safe or reasonable mode of escape by retreat, has no way to protect himself except by inflicting death on the assailant.
(5) In the case of a person who has time to have recourse to the protection of public authorities the right to private defence does not accrue and avail.
(6) The right of private defence cannot be used against any lawful action not resulting in any offence.
MISUSE OF THE RIGHT OF PRIVATE DEFENCE:
Although the right of private defence was granted for self-protection to every citizen of India it is often misused by many people for committing any crime or offence. It has been used to be used as a means of taking revenge. There are many cases when people deliberately provoke others to act aggressively and when the other person reacts aggressively to such provocation it is made an excuse for causing harm or even murder. This right cannot be used where the aggression was shown by the accused only. The Courts have in many cases observed that the right of private defence is available only to the persons acting in good faith and not misusing it as an excuse to justify their revenge or act of aggression. The Court has also stated that the Indian penal code has not made a mechanism through which an attack may be provoked as a pretense for killing while providing for the right of private defence.
LANDMARK CASE LAWS:
Nand Kishore Lal v. Emperor
In the instant case, the accused were Sikhs who had abducted a Muslim married woman and converted her to Sikhism. After a year, the relatives of the woman’s husband came and asked her to return. However, the accused and the woman refused to return. So, the husband’s relatives used force to take her away. The accused started resisting and meted out a strong blow on the head of the woman’s assailants resulting in the latter’s death. The Court held that the right of the accused to defend the woman against her assailants extended to the causing of death and they had, therefore, committed no offence.
Darshan Singh v. the State of Punjab
In this case, the Supreme Court laid down Guidelines for the Right of Private Defence for Citizens. A bench of judges while acquitting a person of murder, said that during the enactment of Sections 96 to 106 of the IPC, the Legislature aimed to arouse and encourage the spirit of self-defense amongst the citizens to protect themselves, when faced with grave danger but within the prescribed limit. A person cannot be allowed to endanger or threaten the lives and properties of others or for taking personal revenge.
The court laid down the following ten guidelines where the right of self-defence is available to a citizen:
- Self-preservation is the most important human instinct and is recognized by the criminal jurisprudence of all free, democratic, and civilized countries by recognizing the right of private defense .
- The right of private defense is available only to a person who has suddenly been confronted with impending danger and not of self-creation.
- A mere reasonable apprehension is enough for exercising the right of private defence. An actual commission of the offence is required.
- The right of private defense commences as a reasonable apprehension of danger arises and it continues with the duration of such apprehension.
- It cannot be expected from a person under assault to modulate his defense step by step with any arithmetical exactitude.
- In private defense, the force used by the accused should be proportionate and not greater than necessary for the protection of the person or property.
- Even if the accused does not take the plea self-defense, such a plea can be considered if the same arises from the material on record.
- The accused is not required to prove the existence of the right of private defense beyond a reasonable doubt.
- The right of private defense is given by the IPC only when the unlawful or wrongful act is an offence.
- In case of a person having the imminent and reasonable danger of losing his life or limb may, in the exercise of self-defense, inflict any harm including causing death on his assailant.
From the above discussion, it is clear that the right of private defence, is an act of defence and not of an offence. It cannot be allowed to be used as a shield to justify an act of revenge or aggression. Thus, the Court needs to be very careful while weighing the facts and circumstances of each case to decide as to whether the accused had acted under this right.
The court needs to consider the following important while deciding on the right of private defence:
Injuries that are caused by the accused;
Injuries that are caused to the accused;
Whether the accused had time to seek the help of the public authorities;
The accession of a threat to his safety.
The force used in defending must be proportionate to the harm threatened. Thus, it is clear that the right of private defence is very helpful in giving citizens a weapon which when not misused helps them in protecting their and other people’s lives and property.