Introduction:
The provision relating to the right of private defence of persons and property is described in sections 96 to 106 of the Indian Penal Code. The clauses found in these sections grant a man the right to use the required force against an offender or wrong-doer in order to protect his own body and property as well as the body and property of another when immediate assistance from the state apparatus is not readily available; and in doing so, he is not responsible for his actions in law. Self-help is the first rule of law in criminal matters. For the security of one’s self, freedom and property, the right of private defence is extremely crucial. It is a right which is intrinsic in a person. But the type and the sum of force is governed in minute detail by statute. The right to private defence is called the use of force to defend one’s property and individual. As a general principle, the private right requires people to use protective action that is otherwise unlawful, to ward off threats that challenge those essential interests.
Private Defence as an Exception Under IPC
Nothing in the exercise of the right to private defence is an offence. The right to private protection cannot, in return, be claimed to be an offence. According to Section 96, the right to self-defence is not complete but is explicitly qualified by Section 99, which specifies that in no situation does the right apply to the infliction of more damage than is appropriate for the purposes of the defence. It is well settled that no right of private protection is open to any side in a free struggle and each person is responsible for his or her own conduct. In other cases, the judges are permitted to be excluded. It must be borne in mind that it is the offender who has the duty of proving an exception. It is not the rule that failure to create such a defence may revoke this privilege to depend once and for all on the exemption. It is axiomatic that through proving a preponderance of possibility, the duty on the victim to prove any truth can be discharged either by proof of defence or also by proof of prosecution. It is clear that no case of the accused’s right to private protection has been placed before the eye-witnesses in the cross-examination, but it is well settled that where there is a fair chance of the accused behaving in the exercising of the right of private protection, the advantage of such a plea can always be granted to them.
In order to protect one’s own body and property as well as another’s body and property, the laws found in these parts grant a man the right to use reasonable force against an intruder or wrong-doer where immediate assistance from the state apparatus is not readily available and therefore he is not liable in statute for his actions. Section 97 states that the right to private protection consists of two kinds:
- Right of private defence of the body.
- Right of private defence of property.
As the name suggests, the right to private defence is an act of defence and not an offence. Therefore it cannot be used as a shield to justify an attack. That needs a very thorough weighing of each case’s facts and circumstances to determine if the offender has actually behaved under this right. Assumptions reached by the offender without any fairground as to the probability of an assault do not authorise him to exercise that privilege.
Except where it triggers the death of another person in the following cases, i.e., the privilege of private defence will absolutely absolve a person from all blame, i.e.
- Where the deceased was the real intruder, and
- Whether the crime committed by the deceased causing the infringement of the privacy right of the body and property falls under either of the six or four categories mentioned in Sections 100 and 103 of the Penal Code.
Illustrations
- Z threatens to kill A under the influence of madness; Z is guilty of no crime. Although A has the same right to the private defence that if Z were sane, he would have.
- A enters a house by night which, in good conscience, he is lawfully allowed to enter Z, taking A for a house breaker, assaults A. Here Z, under this misunderstanding, commits no offence by attacking A. A, therefore, retains the same right of private protection against Z as he would have if Z had not behaved according to the presumption.
- A, a person who has recently been charged with murder and who seems to be violent and defiant, has chosen a quarrel with B. A hit B with a knife during a heated argument. B is entitled to a private defence to defend himself from the act of aggression.
- A had abducted her with the intent to rape B. B kills A with the reasonable apprehension of an imminent threat or danger to her life. The right to private defence can be used by B.
- A made a gesture with a knife to hit B. B in a sudden shot of reflex A that resulted in his death. Private defence rights will not be available to A.
Nature of the Right
It is man’s first responsibility to self-help. For inhabitants of a free world, the right of self-defence must be fostered. In any rule of law, the right is recognised, and its scope differs in inverse proportion to the willingness of the state to protect citizens’ lives and property. It is the state’s primary responsibility to protect the life and property of individuals, but no state can afford to depute a policeman to dog the steps of every rouge in the world, no matter how vast its finances. One point should be clear: while it is time to provide access to police security, there is no right of private defence.
The right does not rely on the alleged wrongdoing of the refused citizen. It relies entirely on the unlawful or seemingly unlawful nature of the intended action, and it makes no difference that it is false if the suspicion is true and rational. An act carried out in the exercise of this privilege is not an offence and, thus, does not give rise, in return, to the right to private defence.
Scope of the Right
Chapter IV of the IPC, which covers Section 76 to Section 106, contains an overview of general defences which can be asserted as an exception to any offence. The right to private defence states that it is not a crime if anything is done in private defence. A right to defend does not require a right to commit an offence, particularly if there is no longer a need to defend. Private rights of protection must be practised in proportion to the degree of violence.
Relevant Provisions
The provision relating to the right of private defence of persons and property is described in sections 96 to 106 of the Indian Penal Code.
Section 96
Things are done in private defence. Nothing is an offence in which a person harms another person in the exercise of private defence.
Section 97
Right of private defence of body and property.
Section 98
Private right of protection against the act of an unsound minded citizen etc.
If an act that would normally be a crime is not that crime, because of the youth, the lack of wisdom of knowledge, the ignorance of mind or the stupidity of the person committing the act, or because of other mistakes on the part of that person, each person has the same right of private protection against that act that he would have if that act were the offence.
Section 99
Acts against which private defence is not entitled.
- There is no right of private protection against an act that, whether committed or completed, does not fairly cause fear of death or grievous harm
- Attempted to be committed by a civil official working in the colour of his office in good conscience, although that act might not be purely valid by statute.
- There is no right of private protection against an act that, whether committed or completed, does not fairly cause fear of death or grievous harm
- Attempted to be achieved, though that path may not be purely justifiable by statute, by the guidance of a civil official working in good conscience in the colour of his office.
- In situations where there is time to provide access to the security of the public authorities, there is no right to private defence.
- The damage caused should be proportional to that caused by an imminent risk of attack.
Section 100
If the body’s right to private protection applies to cause death.
- An attack which causes fair death apprehension.
- The apprehension of grievous harm is rational.
- Carrying out rape
- Unnatural inclination
- Kidnapping or Abduction
- False imprisonment to an individual of that individual fairly apprehends the attack and is unable to notify the public authority.
- Act of tossing or threatening to throw acid, inducing concern the attack would cause significant damage in the head.
Section 101
When those protections apply to any injury other than death being incurred. Where the offence may not fall under either of the definitions alluded to in the last previous sentence, the body’s right of private protection should not relate to the voluntary cause of death to the attacker, nor to the voluntary cause to the attacker of some damage other than death, according to the limits set out in section 99.
Section 102
The body’s right to private protection starts as soon as fair anticipation of the body’s danger emerges from an action or intention to commit the crime even if the crime may not have been committed; it lasts as long as the anticipation of the body’s danger remains.
Section104
If the crime which is committed or attempted to commit which occasions the exercise of the right of private defence is robbery, disorder or criminal offence, not one of the definitions described in the last preceding clause, that right shall not apply to the voluntary cause of death but shall extend to the voluntary cause of death, subject to the restrictions referred to in section 99.
Section 105
The beginning and continuity of the right of private property defence. The protection to private property defence against felony crime or misdemeanour extends as long as the defendant tries to commit illegal offence or misdemeanour.
Section106
The right to private protection against deadly attack when innocent people are at risk of injury.
Relevant Case Laws
1. Laxman Singh v. State of Orissa[1]
It was held that the right to private protection should only be extended if the person making use of it immediately faces an urgent need to protect that is not of his own development, moreover, the need should be current, true and evident.
For an act that is not an offence under the Criminal Code, the privilege to private protection does not apply and may only be used to repel illegal assault and not for revenge. In instances of self-defence, the private defence would also not be relevant.
2. Chacko v. State of Kerala[2]
Having found out that his brother was surrounded by armed attackers, the deceased approached the scene with a chopper. It was held that, on the ground that the deceased had a chopper, no aggressor would demand private defence.
Section 98 allows for the right to private protection in cases of mental and other insanity, such as youth, the sophistication of knowledge, insanity, intoxication or confusion, a person will have the right of private protection even though the act is not an offence.
3. Jassa Singh v. State of Haryana[3]
The Supreme Court ruled that the right to private defence of property would not apply to the death of the person who committed those offences where the act of violation applies to open ground. Only a domestic crime committed in situations where death or serious injury can fairly be incurred is identified as one of the offences referred to in Section 103.
4. Mithu Pandey v. State of Bihar[4]
The Supreme Court ruled that the right to private defence of property would not apply to the death of the person who committed those offences where the act of violation applies to open ground. Only a domestic crime committed in situations where death or serious injury can fairly be incurred is identified as one of the offences referred to in Section 103.
Conclusion
In nearly all countries today, the right to private defence has been acknowledged in the statute. A person’s right to protect the body and property of himself and others is a right. If in this phase anyone commits an offence, there is no offence. It is a right of any citizen, subject to limitations and terms. Instead of private defence, the legislation has granted individual freedom to even cause death in such situations. This is because the legislation itself has agreed that the primary obligation of each person is self-defence. Law won’t be able to support someone who isn’t able to help themselves when anything harmful happens to that person.
References:
- www.legalserviceindia.com
- www.manupatra.com
- www.researchgate.com
- www.westlawindia.com
- www.lawjournalindia.com
[1] 2001 (20) OCR 29
[2] 2003 (2) KLT 964
[3] (1994) CRILJ 916
[4] 1967 CRILJ 102
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