File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Private Defence

In the current rapidly developing and globalizing world crime rates are very high. For every person in this world personal safety, security of life and property are the most important things. Further, every state has the obligation to protect the life of persons and their properties. Therefore, in today's scenario for the maintenance of law and order and peace, penal laws are considered as an effective tool.

Most of the states for the maintenance of law and order has penal laws. Similarly in India we have the Indian Penal Code, 1860. But practically to an extent only a state can provide the protection. In certain circumstances an individual for his self-preservation will be forced to take some critical steps to protect his life or property from the danger.

Therefore, most of the modern civilized societies including India have the right of private defence. In the Indian Penal code, 1860 under CHAPTER IV (i.e., General Exceptions) we have the right of private defence with some of the limitations. In the Indian Penal Code, 1860 law of private defence of body and property are codified from section 96 to 106, these sections are based on the idea of self-preservation. In this article Concept of private defence under IPC is discussed.

Therefore, a reader of this article can get an extensive knowledge about the concept of private defence. The main aim of this article is to explain the right of private defence and their limitations in a manner which is easily understandable by everyone. For better understanding and for acquiring extensive knowledge citations, Foot notes, recent incidents and case laws were added to this article.

Introduction:
In India, the Indian Penal Code, 1860 gives the right of private defence of body and property to every individual. Private Defence is one of the most important rights provided to a person by the law for the protection of life and property. We can say that self-help is the first rule of criminal law.

Under the Indian Penal Code, 1860 General Exceptions are categorized into two i.e., Excusable and Justifiable. The Right of Private defence comes under the perspective of Justifiable exception and helps to exempt an individual from criminal liability. But the right of private defence is subject to certain limitations and restrictions.

Private Defence:

Private Defence is basically the actions taken by a person to protect the body and property from imminent danger. The right of private defence is based on the cardinal principle that is the primary duty of a man to help himself. Self-preservation is the prime instinct of every human being.[1]

It is a highly prized and valuable right granted to a person to offer effective resistance against the assailant.[2] A person is entitled to resist the attack and defend himself.[3] Mayne considers that the whole of self-defence rests on the following four propositions:
  • The Society undertakes, and in the great majority of cases, is able to protect private persons against unlawful attacks upon their person and property.
  • Where its aid can be obtained, it must be resorted to.
  • Where its aid cannot be obtained, an individual may do everything necessary to protect himself.
  • The violence used must be in proportion to the injury to be averted, and must not be employed for the gratification of vindictive or malicious feelings.[4]
Therefore, we can say that right of private defence originates from the idea or fact that a person has the right to protect himself by self-resistance or self-defence. Right of private defence should be exercised only in case of necessity. It is not a right to take revenge.[5] Right of private defence can thus be exercised only to defend unlawful action and not to retaliate.[6] From this we can understand that there is a difference between right of private defence and use of excessive force or retaliation.

Right of Private Defence in India under the Indian Penal Code, 1860:

In the Indian Penal Code, 1860 Sections from 96 to 106 deals with the Private Defence.

Section 96 (Things done in private defence):
Section 96 and 97 of the Indian Penal Code, 1860 are considered as the general principles of the right of private defence. Section 96 of the Indian Penal Code, 1860 refers to the things done in private defence. It states that "Nothing is an offence which is done in the exercise of the right of private defence".[7]

Even though this section did not define the term 'Private Defence', we can understand that the right of private defence or self-defence has to be used legitimately . Whether a person has legitimately acted in the exercise of the right of private defence is a question of fact and there is no test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. [8]

Section 97 (Right of private defence of the body and of property):
Section 97 of the Indian Penal Code, 1860 explains about the offences against which the right of private defence can be exercised and it also specifies that right of private defence is subject to certain restrictions under section 99 of IPC.

According to section 97 of IPC every person has the right to defend:

  1. His own body, and the body of any other person, against any offence affecting the human body.
  2. 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.[9]
From this section we can interpret that, there is no right of private defence if the apprehended act does not fall under the Chapter XVI of the IPC dealing with "offence affecting against human body".[10] Further from the first and second part of this section we can understand that a stranger can also defend another person or another person's property in case of any danger.

Section 98 (Right of private defence against the act of a person of unsound mind, etc.):

Usually in the law of crimes to an extent acts committed by persons like lunatics, intoxicated persons, children under 7 years and acts done under mistake of fact are not considered as offences. Therefore section 98 of the IPC deals with acts done by incompetent persons like unsound mind, intoxicated, misconception etc.[11]

Section 98 specifies that even though the assailant is legally incompetent the right of private defence can be exercised. Section 98 thus ensures that a person does not lose his right of private defence merely because the opposite party is legally incompetent to commit an offence.[12] We can say that this judgment upholds the idea that self-help is the first rule of criminal law.

Section 99 (Acts against which there is no right of private defence):

Section 99 of the Indian Penal Code, 1860 explains about the acts against which there is no right of private defence. The first three paragraphs of this section explain that the right of private defence is not available against the act done by the public servant or by the direction of a public servant acting in good faith under colour of his office or where there is sufficient time for recourse to public authorities.

But this protection given to the public servants or persons acting under their directions will not apply in cases where the actions of the public servant cause reasonable apprehension of death or of grievous hurt to the parties concerned.[13] Part two of this section defines about the extent to which the right may be exercised. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.[14] In this context explanations 1 and 2 to section 99 provide that the section will apply only if the person, doing the act, has knowledge or has reason to believe that the doer of the act is a public servant or is acting under the direction of a public servant.[15]

Section 100 (When the right of private defence of the body extends to causing death):

Section 100 of the IPC deals with the right of private defence of the body when it extends to causing death.[16] As per this section, the right of private defence extends to causing death of the assailant, if anyone of the seven situations which were given under this section therein arise in committing of the offence by the wrongdoer. Section 100 of IPC plays a very important role in protection of women and children in day-to-day life.

This section deals with some of the important issues like an assault with intention of committing rape, gratifying unnatural lust and throwing or administering acid. In 2013 amendment only the clause regarding attempt to throw or throwing or administering the acid was added to the Section 100 of IPC. After the amendment acid administering cases against women drastically decreased in India. In a recent case in Tamil Nadu a 21-year-old women killed a 40-year-old man to save herself from the sexual assault. She was booked under Section 100 of IPC and was later released by Tiruvallur police without any charges.[17]

It provides that the right of private defence of body extend to causing of voluntary death of the actual or potential assailant if he through either of the specified assaults causes reasonable and immediate apprehension of death or grievous hurt in the mind of accused.[18] There must have been a necessity for taking life.[19] Everything mentioned under this section is subject to restrictions under section 99 of the Indian Penal Code, 1860.

Section 101 (When such right extends to causing any harm other than death):

According to the section 101 of the Indian Penal Code the right of private defence of body will extend to causing harm and not death. Therefore, the right of private defence of body will extend to causing death of the assailant under the situations which were stated under section 100 of IPC. In all the cases under this section the defendants right of private defence is subject to limitations under section 99 of the Indian penal code. The following case is a perfect example for section 101 of IPC.

In this case of Mohinder Pal Jolly v. State of Punjab, Workers of a factory threw brickbats and the factory owner by a shot from his revolver caused the death of a worker, it was held that this section did not protect him as there was no apprehension of death or grievous hurt.[20]

Section 102 (Commencement and continuance of the right of private defence of the body):
Section 102 of the Indian Penal code discusses about the commencement and continuance of the private defence of the body.[21] This section provides that right of private defence commences as soon as 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. We must remember that right of private defence does not commence until there is a reasonable apprehension.[22]

The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.[23] From this case laws we can understand that right of private defence is coterminous with the commencement and existence of reasonable apprehension of danger to commit the offence. But the accused had no right to chase and kill the deceased.[24]

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

Sections 103, 104 and 105 deals with the right of private defence regarding the property. Section 103 of Indian Penal Code, 1860 deals with the right of private defence of property extending to cause death.[25] Under section 103, the right of private defence can be exercised in order to defend the property when the following offences attempted to commit or committed:
  1. Robbery,
  2. Housebreaking by night,
  3. Mischief by fire on building, tent or vessel which is used as a human dwelling or as a place for custody of property,
  4. Theft, mischief, house trespass under such circumstances which may cause reasonable apprehension of grievous hurt or death.

When a group of people who are armed comes to a person's land to evict him from that land, he can exercise the right of private defence and even cause the death of the aggressor if necessary. The most important element of this case is that presence of reasonable apprehension of grievous hurt or death.[26] Further, right of private defence under this section is subject to the limitations mentioned under section 99 of the Indian Penal Code, 1860.

Section 104 (When such right extends to causing any harm other than death):

Section 104 of the Indian Penal Code, 1860 deals with the right which extends to causing any harm other than death. As per section 104, if theft, mischief or criminal trespass does not cause any reasonable apprehension of grievous hurt or death then the right of private defence of the property extends to voluntary causing harm to the wrong doer other than death. Section 104 is applicable with the restrictions provided under section 99 of IPC.

However, if an accused is able to prove that the deceased assailant after trespassing in the open land caused any reasonable apprehension of grievous hurt or death that necessitated killing of the assailant, will absolve him from the liability under section 100 of the IPC.[27]

Section 105 (Commencement and continuance of the right of private defence of property):
Section 105 of the IPC deals with the commencement and continuance of the right of private defence of property. Section 105 part-1 states that right of private defence of property commences when there is the commencement of reasonable apprehension of danger to property. Further part 2,3,4 and 5 explains about the continuance of right of private defence against theft, robbery, criminal trespass or mischief and house-breaking by night.[28]

In a case named Sita Ram and others v. state of Haryana, Punjab and Haryana high court has confirmed that the right of private defence commenced when the complainant party entered the property and the right would continue as long as the complainant party remained on the property and trespass continued.

Section 106 (Right of private defence against deadly assault when there is risk of harm to innocent person):
Section 106 of the Indian Penal Code, 1860 explains about the most important concept that is right of private defence against deadly assault when there is risk of harm to innocent person. Thus section 106 of IPC provides that while a person is exercising the right of private defence against an assault and if there is a risk of harm to an innocent person, even at that time also law protects the man who is exercising the right of private defence by giving exemption to him from criminal liability.

For example, in the case of Wassan Singh v. State of Punjab there was a fight between two groups because of that accused received nine injuries.

Therefore, he shot the assailants with his gun but it hit an innocent women bystander and she was killed. In this case the supreme court held that accused had the right of private defence and hence he was acquitted. However, section 106 needs to be read in light of section 100 and certain restriction with which it operates.[29] Further restrictions under section 99 of IPC will also be applicable.

Burden of proof:
According to section 105 of the Indian Evidence Act, 1872 the burden of proof is on the accused. Therefore, the burden of establishing the plea of self-defence is on the accused who sets the plea of self-defence, thus is on the accused who sets the plea of self-defence, and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.[30]

However an accused is not need to prove the existence of the right of private defence beyond reasonable doubt. He can establish it by reference to circumstances transpiring from the prosecution evidence itself.[31] Further the court will decide based on the circumstances.

Conclusion:
As discussed above the right of private defence is one of the most important right that is given to a person. Right of private defence protects the people especially women and children from heinous crimes like rape and acid attack. Further in case of other heinous crimes like House breaking, robbery and dacoity also right of private defence protects the people.

We can definitely say that Self-preservation of one's life is a necessary element of the right of life enshrined in the Article 21 of the Constitution of India.[32] Right of private defence must be used legitimately therefore, private defence won't be applicable to the circumstances like free fight and act done by aggressor. Right of private defence avails only against a danger, real, present and imminent.[33]

Till now everything discussed regarding private defence is a written thing only, the main aim behind enacting a provision is its practical applicability. In the recent scenario heinous crimes against women and children are rapidly increasing. In most of the cases the heinous crimes can be stopped if the right of private defence is utilized.

But unfortunately, knowledge regarding the right of private defence among the citizens (especially in rural areas) is very less. Previously in some of the genuine private defence cases police were hesitant to file the case under sections from 96-106 of IPC.

But when we compare it with the past years currently police officers are also taking necessary steps to file the case under private defence by conducting proper investigation. In a recent incident in Chennai a women were freed by booking the case under Section 100 of IPC. In this incident Tiruvallur Superintendent of Police (SP) V Varun Kumar himself said that "After ascertaining the genuineness of the case, the woman was booked under Section 100 of the IPC and allowed to go free."[34]

Therefore the necessary steps must be taken by individuals as well as government to teach the citizens (especially women's and children's) regarding the valuable right of private defence, if it was done, citizens will be benefited a lot especially we can create a safe society. But we must always remember that the right of private defence will only be applicable to legitimate case.

End-Notes:
  1. Bentham, Principles Of The Penal Code 269 (CreateSpace Independent Publishing Platform, 2016).
  2. Dnyanu HaJai Dev v. State of Punjab, AIR 1963 SC 612.riba Mali v. State of Maharashtra, AIR 1970 SC 979 : (1970) 3 SCC 7.
  3. John Dawson Mayne, The Criminal Law Of India 202 (4th ed. 1896).
  4. Darshan Singh v. State of Punjab, AIR 2010 SC 1212 : (2010) Cr LJ 1393 (SC) : (2010) 2 SCC 333.
  5. Manjeet Singh v. State of Himachal Pradesh, (2014) 5 SCC 697
  6. The Indian Penal Code, 1860,  96, No. 45, Acts of Parliament, 1860 (India).
  7. Ranveer Singh V. State of M.P, (2009) CRI.L.J. 1534
  8. The Indian Penal Code, 1860,  97, No. 45, Acts of Parliament, 1860 (India)
  9. Rajinder v. State of Rajasthan, (1995) 5 SCC 187.
  10. The Indian Penal Code, 1860,  98, No. 45, Acts of Parliament, 1860 (India).
  11. Ram Prasad Ahir v. State of Uttar Pradesh, AIR 1959 All 790 : 1959 Cr LJ 1394 (All).
  12. State of Uttar Pradesh v. Niyamat, AIR 1987 SC 1652 : (1987) Cr LJ 1991 (SC).
  13. The Indian Penal Code, 1860,  99, No. 45, Acts of Parliament, 1860 (India).
  14. Emperor v. Kishenla, AIR 1924 All 645.
  15. The Indian Penal Code, 1860, 100, No. 45, Acts of Parliament, 1860 (India).
  16. India Today, https://www.indiatoday.in/cities/chennai/story/chennai-woman-booked-for-killing-man-saving-herself-sexual-assault-set-free-later-1828937-2021-07-16 , (last visited Sep. 27, 2021).
  17. Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660
  18. Balbir Singh v. State of Punjab, AIR 1959 Punj 332.
  19. Mohinder Pal Jolly v. State Of Punjab,1979 AIR 577, 1979 SCR (2) 805.
  20. The Indian Penal Code, 1860, 102, No. 45, Acts of Parliament, 1860 (India).
  21. George Dominic Varkey v. State of Kerala, AIR 1971 SC 1208.
  22. Darshan Singh v. State Of Punjab and Anr., AIR 2010 SC 1212 : (2010) Cr LJ 1393 (SC) : (2010) 2 SCC 333.
  23. State of Uttar Pradesh v. Ram Swarup, AIR 1974 SC 1570 : (1976) 4 SCC 296 : (1974) Cr LJ 1035 SC.
  24. The Indian Penal Code, 1860, 103, No. 45, Acts of Parliament, 1860 (India).
  25. Kesra Ram v. State of Rajasthan, (1999) Cr LJ 1451 (SC).
  26. Jasa Singh v. State of Haryana, AIR 2002 SC 520 : (2002) 2 SCC 481 : (2002) Cr LJ 563 (SC).
  27. The Indian Penal Code, 1860, 105, No. 45, Acts of Parliament, 1860 (India).
  28. State of Karnataka v. Madesha, (2007) 7 SCC 35 : AIR 2007 SC 2917.
  29. V Subramani v. State of Tamil Nadu, (2005) 10 SCC 358.
  30. Arjun v. State of Maharashtra, (2012) AIR 2012 SC 2181.
  31. Surjit Singh v. State of Punjab, 1996 (2) SCC 336.
  32. Onkarnath Singh v. State of MP 1974 Cr LJ 1015 (SC).
  33. India Today, https://www.indiatoday.in/cities/chennai/story/chennai-woman-booked-for-killing-man-saving-herself-sexual-assault-set-free-later-1828937-2021-07-16 , (last visited Sep. 27, 2021).

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Increased Age For Girls Marriage

Titile

It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

Facade of Social Media

Titile

One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Sexually Provocative Outfit Statement In...

Titile

Wednesday, Live Law reported that a Kerala court ruled that the Indian Penal Code Section 354, ...

UP Population Control Bill

Titile

Population control is a massive problem in our country therefore in view of this problem the Ut...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly