RIGHT TO PRIVATE DEFENCE

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RIGHT TO PRIVATE DEFENCE

 

WRITTEN BY: BABITA PANDEY,

2ND YEAR  LL.B,

 VPM’S T.M.C LAW COLLEGE, THANE

 

EDITED BY: JAIN DIVYA LALIT

(4TH YEAR) B.L.S. LL.B.,

MGM LAW COLLEGE,

NAVI MUMBAI, MAHARASHTRA

 



The state must ensure the safety of its citizens and property however it is not practical for the state to be present in every dangerous situation therefore we must help ourselves when in danger.

Under Criminal law, there is mention regarding the right to private defence.

Private defence is an act done to protect oneself, against any illegal force that can cause harm or injury, it only exists against an offence. If there is no reasonable time to communicate to the authorities, to protect oneself, reasonable force can be applied.

Section 96 to 106 of the Indian penal code states about private defence, a part of general defences that can be taken for any offence committed.

Section 96 of the Indian penal code, provides that nothing done while exercising the right of private defence is an offence.

There is no clear definition for private defence under this section. It can be understood that one has the right to protect his own body and property, another person’s body and property when the state machinery is not readily available to safeguard and a sudden necessity has been encountered by the individual, one can use reasonable force against the wrongdoer to protect himself and it is not an offence in the eyes of the law. There is no absolute test to determine that the act done was legitimately for private defence, all the surrounding circumstances must be considered by the court while determining whether the force was reasonable or not. There is no need for the accused to prove that the act was made under private defence beyond a reasonable doubt.

Section 97 of the Indian penal code specifies against whom the right can be exercised and the extent of exercising this right. Section 99 lays down the exceptions for this defence and together they lay down the principles for the right to private defence.

Section 97 broadly explains that firstly this right is available for his own body, a body of any other person against any violence affecting the human body. This right is available for any moveable and immovable property of himself or any other person that if falling under the definition of robbery theft mischief or criminal trespass or any attempt to commit such offences.

The right to private defence is not available to the person who is the aggressor, this right arises when there is an unexpected apprehension, and a reasonable force can be used to ward off such a threat that may cause harm to life and the limbs. 




Section 98 explains whether this right exists against a person who is of unsound mind, intoxicated or suffering from any such incapacities.

Certain persons are having an incapacity to commit an offence in the eyes of law, for example, a person with an unsound mind, the section states the right to private defence against these persons as if the act committed by them amounts to an offence.

Example: Mr A is a person with an unsound mind, he tries to stab Mr B with a knife under the influence of unsoundness of mind. The act done by Mr A does not amount to an offence but Mr B has the right to private defence as the act committed would amount to an offence if done by a sane person.

Section 99 The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for defence.

This section states that the right to private defence doesn’t exist against a public servant when the act done by him is under the colour of his office. The person must know the public servant however if the act done by the public servant is ultra vires the right to private defences comes into existence. It means if the public servant is acting within his powers the right of private defence doesn’t exist.

The defence cannot exceed the amount of harm that would have been caused by the aggressor, the harm caused must be justifiable.

Section 100 of the act explains under what circumstances death can be caused while exercising the right to private defence. It states that such an apprehension of assault may cause death, grievous hurt, assault to commit rape, gratifying an unnatural lust, kidnapping and abducting. Any assault that is confining a person and a reasonable cause that he won’t be able to reach the authorities for his release. The law authorizes a person to act in self-defence when encountering a threat, the above section clarifies that causing death while exercising self-defence would amount to a private defence for the above offences.

Section 101 mentions that the right to private defence doesn’t extend to cause the death of a person if the offence doesn’t fall under the seven categories mentioned under section 100 of the act.

When does the right to private defence commence? This question is answered by section 102 of the act, the right to private defence commences as soon as there is a reasonable apprehension of danger to the body arising from any attempt or threat to commit an offence, and it continues till such threat exists.

Section 103 states when a person cause death can in defence of a property. Robbery, housebreaking at night, mischief by fire committed on any building, tent of vessel used for human dwelling, theft, mischief or house-trespass, these offences are mentioned under this section against which death can be caused while exercising right to private defence.

Section 104 provides when such rights extend to causing any harm but not death. If any offence is committed against property that doesn’t fall under the offences mentioned in section 103 any harm other than death may be caused.

Section 105 provides when the right to private defence against property commences, it commences when a reasonable apprehension of danger to the property commences and it ends when the offender retreat or the possession of the property is taken back by the help of public authorities.

Section 106 provides that when the right of private defence can be exercised against a deadly assault when there is a risk of harm to an innocent person. It states that the right can be exercised when there is an apprehension of death and the right cannot be exercised with risk of harm to an innocent person, the right extends till running of that risk. This section should be read with section 100.

Example: If person A is attacked by a mob mixed with children and Mr A cannot protect himself without firing at the mob, which may cause harm to the children. He commits no offence by firing at the mob.

Reference:

1] https://www.legalserviceindia.com/article/l470-Private-Defence.html

2] https://blog.ipleaders.in/to-what-extent-can-you-exercise-your-right-of-private-defence/

3] https://www.lawctopus.com/academike/right-private-defence/

4] https://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-defence-for-citizens/

5] A Textbook by Ratanlal &Dhirajlal, The Indian Penal Code 

 


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