Abstract
The Right to Private Defence (RPD), codified in Chapter IV (Sections 96 to 106) of the Penal Code, 1860 (Act XLV of 1860), stands as a fundamental recognition in Bangladesh law of the inherent human right to self-preservation. This legal exception to criminal liability permits an individual to use force, including lethal force, to avert an immediate, unlawful threat to their person or property, or that of a third party. This paper offers a comprehensive analysis of the RPD, meticulously detailing its dual scope (body and property), its critical statutory restrictions (Section 99), and the specific conditions that permit an extension of the right to causing death (Sections 100 and 103). Furthermore, it provides an in-depth exploration of landmark judicial precedents set by the Supreme Court of Bangladesh, establishing the principles of imminence, proportionality, and the subsidiary nature of the right, affirming its status as a shield against immediate peril, rather than a justification for pre-meditated revenge or aggression.
Introduction: The Philosophy of Self-Help in Criminal Jurisprudence
The doctrine of private defence is a universal principle founded on the natural instinct for survival and the failure of the State’s protective mechanism to be omnipresent. The Penal Code, 1860, formalized this natural right into a legal General Exception, recognizing that self-help is justified when the peril is imminent and the protection of public authorities is unattainable.
The fundamental provision, Section 96, simply states: “Nothing is an offence which is done in the exercise of the right of private defence.” This is not a mitigating factor reducing punishment; it is an absolute acquittal, treating the act as non-criminal from the outset. The ensuing sections carefully delineate the boundaries of this power, ensuring that while the citizen is empowered, that power is not abused.
The Dual Scope of the Right to Private Defence
Section 97 establishes the comprehensive nature of the right, extending it beyond the defender’s own person and property:
Right to Defence of the Body
The right extends to defending one’s own body and the body of any other person against any offence affecting the human body (e.g., assault, hurt, wrongful restraint, or criminal force). The law thus transforms every citizen into a custodian of not only their own safety but also that of their neighbours, promoting civic responsibility.
Right to Defence of Property
This covers both moveable and immoveable property of the defender or any other person. The protection is granted against specific offences and attempts to commit them:
- Theft
- Robbery
- Mischief
- Criminal Trespass
Right Against Non-Offenders (Section 98)
Uniquely, the right of private defence remains available even against an aggressor who, due to a legal incapacity (such as youth, unsoundness of mind, or intoxication), cannot be held criminally liable for their actions. This distinction confirms that the focus of the RPD is on the apprehension of danger arising from the act, not the criminal culpability of the aggressor.
Critical Restrictions: The Limits of the Shield (Section 99)
The integrity of the RPD rests entirely on the four vital restrictions laid down in Section 99. Any violation of these restrictions will negate the exception and render the defensive act a criminal offence.
Acts of Public Servants
There is no right of private defence against acts done by a public servant (or by their direction) acting in good faith under colour of their office, even if the act is technically illegal. This is a crucial provision that prevents an individual from resisting lawful, albeit irregular, State authority, provided the act does not cause a reasonable apprehension of death or grievous hurt.
Recourse to Public Authorities
This is the most frequently tested restriction. The right is unavailable when there is time to have recourse to the protection of public authorities (e.g., the police or court). This establishes the subsidiary nature of the RPD; it is a last resort. If there is a chance to seek help, the citizen must do so.
Proportionality and Necessity
The force used must be strictly necessary for the purpose of defence, and must not inflict more harm than is required to repel the danger. The defence cannot turn into a punitive or retributive act. This is the “golden rule” of private defence. Courts judge this by placing themselves in the shoes of the accused, assessing the situation as a man of ordinary prudence would.
Extension to Causing Death: The Ultimate Extremity
The right to inflict death is an extraordinary power, strictly limited by law to the most severe and dangerous threats.
RPD of the Body Extended to Death (Section 100)
The voluntary causing of the death of the assailant is justified only when the apprehension of danger is of the highest degree, specified by six categories of assault:
- Apprehension of Death.
- Apprehension of Grievous Hurt.
- Assault with the intention of committing Rape.
- Assault with the intention of gratifying Unnatural Lust.
- Assault with the intention of Kidnapping or Abducting.
- Assault with the intention of Wrongful Confinement under circumstances precluding recourse to public authorities.
RPD of Property Extended to Death (Section 103)
The causing of death in defence of property is similarly restricted to four specific offences that carry a high potential for danger to life or dwelling:
- Robbery.
- House-breaking by night.
- Mischief by fire on a human dwelling or a place for the custody of property.
- Theft, mischief, or house-trespass which causes reasonable apprehension of Death or Grievous Hurt.
Commencement and Continuance: The Time Element (Sections 102 & 105)
The RPD is a dynamic right, its existence and duration strictly tied to the time the danger persists.
RPD of the Body (Section 102)
The right commences precisely when a reasonable apprehension of danger arises (from an attempt or a threat) and continues as long as that apprehension of danger to the body lasts. Once the aggressor retreats, is disarmed, or is disabled, the apprehension ceases, and the right terminates. Any subsequent act constitutes an offence.
RPD of Property (Section 105)
The duration is tied to the completion of the specific property offence:
- Against Theft: Continues until the offender retreats or the property is recovered.
- Against Robbery: Continues as long as the fear of instant death, hurt, or restraint continues.
- Against Mischief / Criminal Trespass: Continues as long as the commission of the offence continues.
Judicial Interpretation and Jurisprudence of the Supreme Court of Bangladesh
Bangladeshi courts have played a vital role in ensuring the RPD is applied justly:
- The Test of Imminence and Necessity: The courts repeatedly emphasize that the right is born of necessity and can be exercised only to repel an imminent, existing danger. It cannot be claimed against a past injury or a danger that has not yet materialised.
- Settled Possession in Land Disputes: In contentious land disputes, the courts hold that the right is available to the person in settled possession, even if their title is defective. The true owner cannot forcibly dispossess the possessor and then claim the RPD. This prevents the right from being misused to circumvent civil remedies.
- Duty to Retreat vs. Right to Stand Ground: While early interpretations sometimes suggested a duty to retreat, modern jurisprudence, consistent with natural law, recognises that a person is not obliged to take to flight when faced with a deadly assault. The key remains proportionality and the unavailability of public aid.
- Appreciation of Evidence: The burden on the accused to prove the RPD is lighter than the prosecution’s burden of proving guilt. It must be established on a preponderance of probabilities, and the court must consider the circumstances as they appeared to the accused at the time of the incident, not in the quiet comfort of the courtroom.
Conclusion
The Right to Private Defence in the Penal Code, 1860, as administered in Bangladesh, is a robust and essential pillar of criminal justice. It is a carefully calibrated mechanism that balances the individual’s inherent right to life and property with the State’s monopoly on the use of force. The ultimate legal test for invoking the RPD remains a strict adherence to Section 99: was the danger imminent, was there time to call for help, and was no more harm inflicted than was absolutely necessary to avert the threat? As the case law shows, the “Shield of Necessity” is only granted to those who use it with the discipline and restraint the law mandates.
Written By: Nazmul Hasan
Senior Judicial Magistrate
Professional Highlights
- Senior Judicial Magistrate, 11th Bangladesh Judicial Service (BJS)
- Merit Position: 7th in the 11th BJS
Academic Qualifications
| Degree | Result | University |
|---|---|---|
| LL.B. (Hons.) | First Class First | University of Rajshahi |
| LL.M. | First Class | University of Rajshahi |
Honors & Achievements
- Prime Minister Gold Medalist – 2017
- Agrani Bank Gold Medalist for Academic Excellence – 202
