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Right Of Private Defence

IPC Section 96 to 106 states that the law relating to the right of private defence the body and the property of one's person or another person.

The provisions are in these sections states that when one is apprehended that some is going to  attack on his body or another's body and also over his or another's property then he can use  necessary force against an assailant or wrong-doer for the purpose of protecting one's own  body and property as well as another's body and property.

According to Section 97 of IPC there are two types of Right of private defence:

  1. Right of private defence of body.
  2. Right of private defence of property.

Body may be one's body or the body of another  person and like that property may be movable or immovable and may be of oneself or of any  other person. Self-help is the first rule of criminal law. The right of private defence is absolutely  necessary for the all persons to protect of one's life, liberty and property from harm. It is a right  inherent in a man. But the amount of force is that a person can use at the time of defence if  regulated by the law and the person can take the law in his hands when there is an  apprehension of harm and the right can be extend when it causing to death of any person or  another person.

Nature of the Right

It is the first duty of a person to help himself from any harm. The right is recognized in every  system of law and its extent varies in the inverse ratio of the state to protect life and property  of the citizens. It's the primary duty of the state to protect the life and property of the  individuals, but no state, no matter how large its resources, can afford to depute a policeman to  watch the every step of the offence going on in the country wide.

Consequently the right of  private defence has been given by the state to every citizen of the country to take law into his  own hand for their safety. One thing should be clear that, there is no right of private defence  when there is time to take the help of the of police authority. It depends solely on the wrongful  act attempted, if the apprehension is real and reasonable it makes no difference that it is  mistaken. An act which is done in exercise of defence is not an offence.

Section 96 of the IPC - Things done in private defence
Nothing is an offence which is done in the exercise of the right of private defence. The right of private defence cannot be an offence in return. The right of private defence is not  absolute under section 96 but is clearly qualified by section 99 which says that the right of  private defence in no case extends to the infliciting of more the harm than it is necessary for the purpose of defence. In a free fight, no right of private defence is available to either of the  party.

Section 97 of the IPC- Right of private defence of the body and of property.
Every individual has a right to defend his body or the body of any other person from causing  any harm to the body of humans. If he has apprehension that any one is going to harm his body  or any other person then he can take the right of private defence but it should be clear that he  can only use the necessary force against the assailant or the wrong- doer. He can only exercise  his right of private defence, if there is an apprehension of death.

Like human body, every individual has also the right of private defence of the property to protect the property of hiself or any other property.

Section 98 of the IPC- Right of private defence against the act of a person of unsound mind, etc.
This section means that the right of private defence is available against such assailant and  wrong doer also who may be mentally incapacitated and because of which they themselves  may not be liable for any harm which they might cause. In other words, this section says that  the same right of private defence is available to one against another normal person is also  available against such other persons who may not be liable for their acts in view of the fact that  certain specific defences have been provided to them by the Indian Penal Code.

Such defences which falls under these are defences of infancy under section 82, want of  maturity of understanding under section 83, unsoundness of mind under section 84,  intoxication under section 85 and any misconception on the part of those persons under  sections 76 and 79 of the Code. The private defence law does not make a distinction between a  normal and a non-normal attacker on body or property of any person and in both cases same  right is available to the defender.

Section 99 of the IPC-Act against which there is no right of private defence.
There are certain general restrictions or limitations put on the right of private defence. And this section deals with that restrictions or limitations. Section 97 expressly states, as already seen earlier, that the right of private defence is subject to the restrictions contained in section 99 of the IPC.

Whenever an act is done or attempted to be done by a public servant who acts in good faith  under colour of his office, there exist no right of private defence against such act, If there is no  reasonable apprehension of death or of grievous hurt, though that act is not strictly justifiable  by law.Section 100 of the IPC- When the right of private defence of the body extends to causing death

The right of private defence extends to the voluntarily causing of death or any other harm to  the wrong-doer, if the offence which occasions the exercise of the right of any of the following  descriptions:

  1. Such an assault may reasonably cause the apprehension of the death otherwise be the consequence of such assault.
  2. Such an assault may reasonably cause the apprehension of the grievous hurt otherwise be the consequence of such assault.
  3. An assault of committing rape.
  4. An assault of gratifying unnatural lust.
  5. An assault with the intension of kidnapping or abducting.
  6. An assault of wrongfully confining a person.


Section 101 of the IPC - When such right extends to causing any harm other than deathSection 101 states that if the offence be not of any of the description enumerated in Section 100; the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend to the voluntary causing to the wrong- doer of any harm other than death. Thus, under this section, any harm short of death can be inflicted in the exercise of the right of private defence in any case which does not fall in the provisions of section 100.

Section 102 of the IPC - Commencement and continuance of the right of private defenceThis section states that the right of private defence of the body commences as soon as a reasonable apprehension of assault to the body arises from an attempt or threat to commit the offence may not have been committed and it continues as long as such apprehension of the body continues.

Section 103 of the IPC - When the right of private defence of property extends to causing deathThis section states that the right of private defence of property enumerates those under which the defender is entitled to cause even death of the wrong-doer while exercising right of private defence of property. The circumstances under which even death may be caused have been enumerated under four clauses and the section clearly state that the right is available where any of the offences mentioned under any of these clauses has either been committed or 
attempted.

  1. Robbery
     
  2. House - breaking by night
     
  3. Mischief by fire, or its attempt, committed on any building, tent or vessel which is used as human dwelling, or as a place for the custody of property. Mischief has been defined under section 425 of the code.
     
  4. Theft, mischief not covered under the previous clause, or house-trespass or their attempts under such circumstances as may result into a reasonable apprehension in the mind of the defender that grievous hurt or death will be the aftermath.


Section 104 of the IPC:
When such right extends to causing any harm other than death If the offence committing of which, or attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, the right does not extend, the voluntary causing of death but does extend to the voluntary causing to the wrongdoer of any harm other than death.

Section 105 of the IPC - Commencement and continuance of the right of private defence of property. Under this section the right of private defence of property commences when a reasonable apprehension of assault to the property commences.

  1. Against theft.
     
  2. Against robbery continues as long as the offender causes or attempts to cause to any person death, hurt or wrongful restrain or fear of instant death or instant hurt or instant personal restrain continues.
     
  3. Against criminal trespass or mischief continues as the offender continues in the commission of criminal trespass or mischief.
     
  4. Against house-breaking by night.Section 106 of the IPC - Right of private defence against deadly assault when there is risk of harm to innocent person If in the exercise of the right of private defence against an assault which is reasonably causes the apprehension of death, the defender eventually cannot exercise the right without harm to an innocent person. His right of private defence can extends only to the running of that risk.

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