Right to Private Defence: An Overview
Aug. 24, 2020 • Madri Chandak
Profile of the Author: Abhishek Tanwar is a student of Law Centre-1, Faculty of Law, Delhi University
Introduction
Self-help is the first rule of criminal law.[1] The state has very limited resources, so it is not possible to ensure the safety of every single individual in every circumstance.[2] The Russel defines the rule as the Right of Private Defence, wherein a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable.
Justice K.S. Hegde in a judgement said, "the right of private defence serves a social purpose and that right should be liberally construed".[3] Such a right not only will be a restraining influence on bad characters but also it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away without a courageous comeback.
Types of Right of Private Defence
Right of private defence has been provided under sections 96 to 106 of Indian Penal Code, 1860 (IPC).
Sections 96 to 106 may be divided into three categories namely:
(1) Common sections - Sections 96, 97, 98, 99, & 106
(2) Sections related to body - Sections 100,101&102
(3) Sections related to property - Sections 103,104 &105.
Provisions of Rights of Private Defence
Common sections
Common sections are applicable in certain situations when the right of private defence is related to either body or property.
Section 96, Things done in private defence: Nothing is an offence which is done in exercise of private defence.
Section 97, Right of private defence of the body and property: This section contains two clauses. Firstly, the right of private defence against any offence affecting the human body. Secondly, the right of private defence in respect of property, whether movable or immovable in offence related to (Theft, Robbery, Mischief and Criminal Trespass) TRMC in short.
Section 98, Right of private defence against the act of a person of unsound mind, etc: When an act, which would otherwise be a certain offence, is not that offence, because of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of a person doing the act, every person has the same right of defence against that act which he would have if the act were that offence.
Section 106, Right of private defence against deadly assault when there is a risk of harm to an innocent person: If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
Sections related to body
Section 100, When the right of private defence of the body extends to causing death-The Right of Private Defence of the Body extends to the voluntary causing of death or any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely –
- Firstly - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
- Secondly - Such an assault as may reasonably cause the apprehension that Grievous Hurt will otherwise be the consequence of such assault;
- Thirdly - An assault to commit rape;
- Fourthly -An assault with the intention of Gratifying Unnatural Lust;
- Fifthly - An assault with the intention of Kidnapping or Abducting;
- Sixthly - An assault to Wrongfully confine a person,
under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Section 101, When such right extends to causing any harm other than death: If the offence is not of any of the descriptions enumerated in the last preceding section i.e. Section 100, the Right of Private Defence of the body doesn’t extend to the voluntary causing of death to the assailant but does extend to the voluntary causing to the assailant of any harm other than death.
Section 102 Commencement and continuance of the right of private defence of the body: The right of private defence of the body commences as soon as a 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, and it continues as long as such apprehension of danger to the body continues.
Sections related to Property
Section 103, When the right of private defence of property extends to causing death: The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely -
First- Robbery ;
Secondly- House-breaking by night;
Thirdly- Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
Fourthly-Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause apprehension that death or grievous hurt will be the consequence of such right of private defence is not exercised.
Section 104, When such right to causing any harm other than death: If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Section 105, Commencement and continuance of the right of private defence of property: The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
- against theft
- against robbery.
- against criminal trespass or mischief.
- against house-breaking.
Limitations of Rights of Private Defence
A person cannot exercise the Right of Private Defence in following situations which are provided under Section 99 of the Code, which areas –
i) against the acts of a public servant acting in good faith and;
ii) against the acts of those acting under the authority or direction of a public servant.
iii) where there is sufficient time for recourse to public authorities.
Burden of proof
The burden of proof in case of private defence is on the accused. Accused has to prove that the act he did (which is an offence), should be done in exercise of the right of private defence.
Conclusion
It is the duty of the State to protect everyone but we all know it can be possible up to some extent but not 100%. This is why Rule of Law makes a provision of the right of private defence for self-defence. Self-protection is the first duty. But the misuse of these right will be more dangerous. Due to this, there are certain limitations mentioned under these provisions.
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FAQs
Q. What maxim is the "Right of private defence" based on?
Ans. Right of self-defence is based upon the general maxim that “necessity knows no law” and “it is the primary duty of man to first help himself”
References
[1] K D Gaur, Textbook on Indian Penal Code 254 ( LexisNexis, Gurgaon,6th edn., 2016).
[2] 94 Ref Crime (11th Edn., Vol.1, p.491)
[3] AIR 1978 SC 702