November 27, 2020

The Right of Private Defence under Indian Penal Code:

What is Private Defence?

The dictionary meaning of private Defence reads “Action taken in reasonable defence of one’s person or property. It can be pleaded as a defence to an action in tort. The right of private defence includes the defence of one’s family and, probably, of any other person from unlawful force.”[1] The terms “self defence” and “private defence” are used interchangeably or as synonyms. The Merriam Webster dictionary defines self defence as “a plea of justification for the use of force or for homicide”, “the act of defending oneself, one’s property, or a close relative”[2]

Private Defence under IPC

The Indian Penal Code, 1860, Section 96 to Section 106 enshrine Right of Private Defence of person and property.

Provisions contained in these Sections authorize a man to use necessary force against a person who assaults him or wrong dier for the purpose of protecting one’s own body and property as well as another’s property and property when in case immediate aid from the state machinery is not readily at the moment available and in so doing he is not answerable in law for his act. Section 96 declares in general that nothing is an offence which is done in exercise of right of private defence. Section 97 says that right of Private Defence is of two types:

1) Right to private defence of body

2) Right to private defence of Property

Section 98 lays down, for the purpose of exercising the right of private defence physical or mental incapacity of the person against whom it is exercised is no bar.[3]

Section 99 defines that to which actions the right to private defence does not extends:

1) Act of public servant not causing apprehension of grievous hurt.

2) Act done under the direction of public servant not causing apprehension of death or grievous hurt

3) Where there is a time to have recourse to the protection of public authorities.

The second part of the Section lays down that the right does not extend to inflicting of more harm than is necessary for defence. Moreover, unless the person knows that the actor is a public servant or the act is done under direction of public servant his right of private cannot be deprived.

Further, Section 100 and 101 lay down the circumstances when the right of private defence of body extends to causing death or any harm short of death, similarly Section 103 and 104 explain the extent of the right of private defence of property causing death or any harm short of death.[4]

Section 102 and Section 105 lay down the commencement and continuance of this right and Section 106 explains as to when the right can be exercised at the risk of causing harm to an innocent person.[5]

Ingredients for Private Defence

Section 97 laid down ingredients for private defence:

Ø Each and every person has right to private defence

Ø There must be apprehension or fear of harm to body or property

Ø Recourse to calling public authorities is not available

Ø An offence amounting to commit theft, robbery, mischief or criminal trespass is taking place.

Nature of Right of Private Defence

In Shankar Balu Patil v. State of Maharashtra[6] hon’ble Supreme Court stated that right to private defence is purely preventive and not offensive, retributive or punitive. The right is a right of ward of danger must not be illusory but must be so imminent, potent and real that it cannot be averted otherwise than by a counter attack.[7] The rule is quite clear on the point that it has to be established that the accused person were under such grave apprehension about the safety of their lives and property that retaliation done to the extent done was absolutely necessary.[8] The Court has made it clear that Section 97 of IPC recognizes the right of person not only to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.[9]

To justify the exercise of this right the following are to be examined:[10]

1) The entire incident

2) Injuries received by the accused

3) Imminence of threat to his safety

4) Injuries caused by the accused

5) Circumstances whether the accused had time to recourse to public authority.

Burden of Proof

The Burden of proof lies on the person who takes the plea of self defence. It is for the accused to show and prove by placing reliance on evidence that he did the act in order to save himself or his property from harm.[11]

1). Section 96: Things done in private defence

The section emphasizes that nothing is an offence which is done in private defence. The right of self-defence has to be pleaded and proved by the accused.[12] Even if the accused had not pleaded this right, if the court, from the material before it finds that the accused acted in delf defence, must take cognizance of the fact.[13]

2). Section 97: Right of private defence of the body and the 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 or criminal trespass.
Section 97 of Indian Penal Code divides the right of private defence into two parts. first part deals with the right of private defence of person and second part with the right of private defence of property. The rights of defends is not only to the defence of own body or property but also extend to defending the body and property of any other person. Even a stranger can also defend the person or property of another person and vice versa.[14]


Section 98: Right of Private defence against the act of a person of unsound mind etc.

The right of private defence of a body exists against all attackers, whether with or without mens rea. A person has the same right of private defence which he would have against the acts of a sane person. Even if an attacker is protected by 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: Acts against which there is no right of private defence

The provision of the first clause of this section are intended to extent the protection of law to those acts of public servant which are strictly not justifiable by law and yet not wholly unauthorized, if done in good faith under the color of his office, provided that the act does not reasonably cause apprehension of death or grievous hurt. Moreover, the protection granted to a public servant also extends to those who act under his discretion.[15]

The remaining two clauses of the section deals with two wholly distinct matters. Firstly, that there is no right of private defence in cases in which there is time to have recourse of public authorities, secondly that the right of private defence in no case extends to inflicting more harm than is necessary for the purpose of defence.[16]

Section 100: when the right of private defence of body extends to causing death.

The right to private defence empowers a person to cause assailant’s death. This power subjects to restrictions which are laid down under section 99. The apprehension must be reasonable and the force inflicted must be proportionate.

The right of causing even death of assailant when:

1. When the assault cause reasonable apprehension of death

2. When the assault causes reasonable apprehension that grievous hurt may be consequence of such assault.

3. When the assault is done with the intention of committing rape

4. Or the gratifying unnatural lust

5. Or kidnapping

6. Or of abducting

7. Or of wrongful confinement of a person in such a way that he would be unable to have recourse to the public authorities for this release.

Conditions

To invoke Section 100 of Indian Penal Code following four conditions must exist.
(1) The person exercising the right of private defence must be free from fault in bringing about encounter.
(2) There must be present an impeding peril to life or of great bodily harm, rape, unnatural lust,kidnapping or abduction, wrongful confinement etc.
(3) There must be no safe or reasonable mode of escape by retreat, and

(4) A necessity for taking assailant’s life.

Section 101: harm short of death

When the offence is not enumerated in the previous section, the right of private defence of the body does not extends to causing death of the assailant but he can cause any harm short of death in private defence although the right subjects to restrictions mentioned in section 99.

Section 102: Commencement and continuance of the right of private defence

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.

Section 103: When the right of private defence of property extends to causing death.

This section empowers a person to cause death of assailant in private defence of body in some situation the given power subjects to restrictions provided under Section 99.

So, death can be caused in defence of property in the following cases:

1. Robbery

2. House-breaking by night

3. Against mischief by fire to any kind of human dwelling or a place for custody of property; and

4. Against

a) Theft

b) Mischief

c) House-trespass causing apprehension of death or grievous hurt.’

Section 104: Right of private defence extends to causing any harm short of death.

This Section cannot be said to be giving a concession to the accused to exceed their RPD in any way. If anyone exceeds the right to private defence and causes death of the trespasser, he would be guilty under Section 304, part II.[17]

Section 105: Commencement and continuance of right to private defence to property

To what extends this right is justified depends not on actual danger but on whether there was reasonable apprehension of such danger and when the same is commenced.

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 or 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.[18]

Section 106: Right to private defence against a deadly assault.

This section provides for the risk a person may have to run in order to defend himself against a deadly assault reasonably causing 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 of private defence extends to the running of that risk.

[1] Private Defence, Oxford reference, https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100346889

[2] Self defence, Merriam Webster, https://www.merriam-webster.com/dictionary/self-defense

[3] B. M. Gandhi, Indian Penal Code, pg. 129

[4] ibid

[5] N. G. Shreedharam v. State of Kerala, (1996) 2 SCC 112: 1996 SCC (Cri) 608

[6] (2008) 2 SCC (Cri) 591

[7] Vijay Pal v. State, 1984 Cri LJ 188 (Del) (NOC)

[8] Rajpal v. State of Haryana, (2006) 9 SCC 678 : (2006) 3 SCC (Cri) 361.

[9] (1996) 5 SCC 107: 1996 Cri LJ 2860

[10] Patil Hari Mehji v. State of Gujarat, (1983) 2 sCC 270

[11] Know The Right of Private Defence Under The Indian Penal Code, Lawnn, November 30, 2018, https://www.lawnn.com/right-of-private-defence/

[12] Ram suhavan v. state, 1976 All LJ 508

[13] Hom singh, 1982 UP Cr Cas 30

[14] SRD Law Notes, https://www.srdlawnotes.com/2017/05/right-of-private-defence-section-96-to.html

[15] B. M. Gandhi, IPC, pg. 137

[16] ibid

[17] V. C. Cheriyan v. State of Kerala, 1982 Cri LJ 2071 (ker)

[18] SRD Law Notes, https://www.srdlawnotes.com/2017/05/right-of-private-defence-section-96-to.html

Author: Aparna Verma

Leave a Reply

Your email address will not be published. Required fields are marked *