RIGHT TO PRIVATE DEFENCE
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/
5]
A Textbook by Ratanlal &Dhirajlal, The Indian Penal Code
Comments
Post a Comment