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Explaining The Right Of Private Defense

One of the first and foremost duty of an individual is to help himself and this is the major reason for the evolution of the right of private defense in the population of all free countries. This right is more or less recognized in every system of law but the extent of it applicability varies according to the ability of the state to protect its subjects. Though the right of private defense is granted to the citizens but still the primary duty lies upon the state to protect life of the citizens and also their properties. However, it is not possible for any state to employ one guard or policeman to track activities of each and every citizen.

Thus for the safety and well-being of the citizens, the state has given them the right to exercise the right of private defense to be used when someone is confronted with an evident threat and approaching for help to is not possible at that point of time. The right depends on the whether the act against which it is exercised is wrongful and the apprehension of the threat is reasonable and real. An act of private defense does not give right of private defense in return.

Introduction
Indian law declares that an act is not an offense when it is committed while exercise of the right of private defense, but we need to know that the right of private defense is not an absolute right. Right of self-defense is declared under section 96 of the Indian penal code 1860. Section 99 of IPC says the right of private defense cannot extend to inflict more harm than the harm necessary for the purpose of that defense. In some instances, however the right of private defense is not available, for example in a free fight all the persons involved are held responsible for their own acts.

It must be noted that a person when confronted with an evident threat to his life is not in a mental state to decide with practical correctness that how much injury he can inflict on the person from whom the threat comes, but this does not gives right to the person to whom the threat comes to use a force which is not proportional at all or which is out of all proportion to the injuries caused to the person from whom the threat comes and therefore in this circumstance the force applied will be in excess of the actual requirement of the case.

When a person claims the defense, of the right of private defense the burden of proof lies on the person claiming the same and therefore he shall prove that he has used force which is proportional to the apprehended threat and there was no time for him to resort to or to seek the help of the police authorities.

The court has the discretion to acquit an accused on the plea of the right of private defense even if the accused has not pleaded the defense of the right of private defense himself, but it should be noted that this is an exception and is dependent on different and extraordinary circumstances and therefore, does not shift the burden of proof from the accused in any way whatsoever.

It should be clear that when a person claims a defense under any general defense mentioned under IPC will have the burden or onus to prove his claim in front of the court. It is unquestionable that the burden of proof on the accused has to be proved by the defense witnesses and evidences or by finding out the probability or possibility of such act of private defense in the prosecution witnesses and evidences.

When the evidences against the accused are strong enough and are forming on the facts which is sufficient to convict the accused he cannot take the plea of right of private defense but if there is any possibility for probability that the accused may have acted in exercise of the right of private defense the benefit of that probability can be given to him. The sole purpose of this defense is to to qualify an act which would otherwise be a criminal offense and would be punishable under law, a non-punishable one.

Right Of Private Defense Explained

Section 99 of IPC says that an individual does not have the right of private defense against an act which does not cause any reasonable apprehension of grievous hurt or death. It is also stated that any act of a public servant which he does in good faith for public good on the authority of his office cannot be taken as an apprehension of grievous hurt and hence no one has the right of private defense against such act though the act may on the face of it be, not strictly justifiable.

Even no individual would have the right of private defense against an act which is done on the direction of a public servant who gives such direction in a good faith for public welfare. Also this defense will not be applicable when the accused had the time to seek the help of police authorities. This defense cannot be in any case extend to inflict more injury or harm than is necessary for the purpose of that defense.

There are certain exceptions to section 99 of IPC the first one of which says that if the accused has exercise the right of private defense against the act of a public servant, where the person claiming the defense didn't have the knowledge that the person against whom he exercises the right of private defense is a public servant or has no reason to believe that the person is a public servant then the defense would be applicable.

The second exception to section 99 of the Indian Penal Code is to some extent similar to that of the first exception, here the act is done under the direction of a public servant but the accused did not have the knowledge that the act was being done under the direction of a public servant or had no means to believe that. Therefore, we can conclude that section 99 of IPC lays down certain conditions so such defensive right given to all citizens cannot be used as offensive right and puts up certain limits to the use of the right of private defense. By providing this right to the citizens the state does not empower them with guns and weapons.

The sole purpose for providing this right is to provide a means to the people to help themselves and others, when there is an apparent threat to life or property belonging to them or to others. It is assumed that a public servant works for public good and welfare and hence the right of private defense cannot be invoked against him because he is given legal sanction by the state to perform certain duties on behalf of the state, therefore such acts cannot be considered as illegal.

Third part of the section provides that the right of private defense would be available only when the person who is confronted with the threat has no means to reach to the police authorities and there is no other way to save himself or his property.

Therefore, it is treated as the last resort for one to opt for. For example, a man on the sight of a dacoit gang trying to break the lock of the house that is trying to enter into the house, shots one dacoit dead with his pistol would not be eligible to take the defense of the right of private defense. Another most important criteria to be kept in mind that the harm inflicted by the accused should be in proportion to the threat possessed to him or to his property, or to any other person or to his property.

It may be concluded that the right of private defense is subjected to four limitations which are as follows:
  • Cannot be exercised against a public servant.
  • Cannot be exercised against those, who act on behalf or on direction of a public servant.
  • Will not be available when the accused had the time to resort to other options such as approaching public authorities.
  • Will not be available if the harm caused is not in proportion to the threat possessed or in other words the harm is greater than the harm which was necessary.

It is to be noted that the right given to the public servants to stay protected is not an absolute one and is subjected to certain restrictions. If a public servant act in a way which creates serious consequences or results in an apprehension of threat of death or grievous hurt, then he would be deprived of the protection given to him by the law. It is essential for a public servant to follow certain conditions which are necessary to escape liability so as to held the accused liable.

First and foremost, condition for that is the condition that the act should be done under the authority of his office or his position given by the government.

Secondly the act of the public servant should be an act done for the public good and welfare in a good faith.

Third the accused must have reasonable grounds to believe that the act done was done in good faith by the public servant for the welfare of the public in discharge of his legal duty assigned to him by the government and the act it was not an illegal act. Hear the term good faith please a very important role as good faith includes proper caution and care which is to be taken while doing that act.

In the case of Emperor vs Mammun, there were five accused who went out at night armed with sharp weapons and assaulted the victim while the victim was harvesting his crop from his field. The victim received several fatal injuries and fractures. During the trial all the accused pleaded the defense off the right of private defense contending that they were protecting their property. The court held that in this case the right of private defense cannot be invoked because the accused had sufficient time to seek the help of police authorities.

In case of Public Prosecutor v. Surya Narayan some custom officers were in regular duty and conducted a check or inspection on certain goods inform the goods to be smuggled from Yemen. While officers were conducting their inspection on the goods the smugglers came and attacked the officers in trial the smugglers claim the right of private defense and contended that the officers had no right to search and inspect their goods and also Yemen is not listed as an outside territory under the Indian Tariff Act. The court held that such defense cannot be claimed because the officers were acting in good faith and according to their job sanctioned by the state.

Section 100 of the Indian penal code, 1860 talks about certain conditions when the right of private defense to body can extend to causing death the person from whom the threat is possessed. It is the right of private defense to body may in some instances extend to killing of the person from whom the threat comes but there are some restrictions to this right or in other words the voluntary causing death of the person from whom the threat comes. The cases in which the right of private defense to body can extend towards death of a person subjected to six conditions any of it, when fulfilled can act as a defense to the accused.

The right of private defense can extend to causing death when there has been apprehension of grievous hurt or death, or an intention to fulfill unnatural lust, or an intention to rape, or an intention of kidnapping or abducting or an intention of confining a person wrongfully under the circumstances in which it would not be possible for the person so confined to approach to or to seek help of the public authorities that is he has no means to reach to the police.

To invoke right given by section 100 of The Indian Penal Code there are certain essentials which needs to be kept in mind, which are as follows:
  • There should not be any kind of fault of the person exercising the right of the private defense in initiating the act.
  • There should apprehension of some great bodily harm or a peril.
  • Killing the person was the last option available or in other words there should be any mode of escape.
  • Taking the life was necessity.

In the case of Yogendra Moraji v. State of Gujrat[1], Justice Sarkaria critically analyses in details the extent other right of private defense and the limitations to the same. One of the first and foremost criteria which was discussed is that there shall be no other means of escape from the imminent peril and there shall be an actual threat to life or of grievous hurt.

It was stated that the person in danger should at first try to save himself through other means and only if there is no possibility of retreat then only he can exercise the right of private defense or in other words defend himself through force. Here a comparison was made with English law which also says that the person in danger shall look for means to escape or other means to see himself before using any force or before exercising the right of private defense.

In the case of Nand Kishore Lal v. Emperor[2], some Sikhs forcefully abducted a woman who was Muslim by religion and then forcefully converted her religion to Sikhism. Much after this incidence some relatives from the marital home of the woman came to take her back but she refused to go back. Heated arguments started and the relatives tried to take the woman back forcefully.

During this the accused tried to resist the attempt of the relatives to take the woman back delivered a fatal blow on one of the relative which resulted in the death of the person. The accused claimed the defense of the right of private defense and the court granted the same and held that the accused committed no offense.

Section 105 of the Indian Penal Code talks about the commencement and continuance of the right of private defense of property. Right of private defense of property starts or commences when the reasonable apprehension of threat danger starts.

For example, if we talk about theft then the commencement of the right of private defense may start as soon as a thief has entered into the property till the time the thief of the offender re treats from the property or till the time the victim had approached the public authorities or in some cases till the time the properties have been recovered back. While in case of robbery the right continues till the time the offender tries to hurt or cause death or retrain someone wrongfully.

In case of mischief for criminal trespass the right of private defense continues till the time the offender continuous to commit the act of trespass. Again it should be noted that this right is only applicable when there is no option to approach the public authorities or seek other defenses.

Section 106 of the IPC also states an important provision which declares that in situations where it is evident that the right of private defense can only be exercised in such a manner that it may harm and innocent person and there is no other means of exercising the right of private defense then exercise of the right it extends to taking that risk of causing harm to an innocent person.

Conclusion
So we can conclude that the right of private defense is an important right provided under IPC but it is also subjected to some very important conditions and until and unless these conditions are satisfied right of private defense cannot be invoked by a person. This right is important defense for the citizens of the country and it should not be perceived as a way of taking revenge instead it is a way of depending on self from an imminent danger or an attack from a third person.

There have been few cases where this right has been misused and it is difficult for the court to find out that whether this right has been exercised in good faith or not, but this provision is important and cannot be struck down as it provides a right to an individual to protect himself from crimes.

End-Notes:
  1. 1980 2 SCC 218
  2. AIR 1934 All 829

    Award Winning Article Is Written By: Mr. Arkojit Debnath
    Awarded certificate of Excellence
    Authentication No: AP111657307282-26-0421

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