This article is written by Suryansh Singh, student, Indore Institute of Law, Indore. Here he discusses private defence.
The state is obligated to remove all kinds of disorder from society and provide social security for the welfare of its citizens. From a layman’s perspective, security should be of a body and then of a property. With the changing socio-economic and political condition of the society, people realised the need for security of the body as well as property from the external threat which led to the emergence of private defence.
Right of private defence of body and property is the inherent right of an individual which must be encouraged in every citizen of the society in order to maintain fundamental freedom in the society.
Nature and scope
As described under criminal law self-help is the first rule and condition of law. This right basically states that every individual has the right to protect himself and his property from any external threat. The amount of force used must be proportionate and reasonable which is to be controlled by law. This right is subjected to certain restrictions imposed by law.
For eg. If A (wrongdoer) in a dispute with B tries to kill B. B has every right to protect himself if there exists any apprehension of threat or danger to life.
Private defence is a recognised right and is sanctioned by law. Under section 96-106 of IPC(India Code: Indian Penal Code, 1860) there are laws governing the right of private defence-
- Section- 97, 98, 99 deals with both the aspect of right to defend body and property.
- Section- 100, 101, 102, 106 deals with the right to defend body.
- Section-103, 104, 105 deals with the right to defend property.
Principles of private defence
Available against wrongdoer
The right of private defence is available against all those persons who threaten to cause acts which are illegal and forbidden by law.
Reasonable assumption of threat
The offences caused by the wrongdoer shall be of that nature which automatically creates the reasonable apprehension of threat and danger in the mind of a person for which he shall take the protection of public authorities.
In the instant case of Darshan singh v. state of punjab anr on 15 jan. 2010 guidelines regarding right to private defence was stated-
- Self-help is the basic rule of law
- When there is an imminent threat or danger to the life of a person the right of private defence can be exercised.
- Reasonable apprehension of threat can also give rise to the right of private defence.
- Proportionate force must be used by the person while exercising the right.
- The accused is not required to prove the presence of private defence beyond the reasonable doubt.
- Whenever there is an imminent threat or danger to the life of a person or of sustaining such bodily injury, a person can cause death or other harms to the assailant.
Misuse of private defence
The right of private defence is the right recognized by law for the protection of an individual from any kind of external threat to the body and property. Such right is nowadays being misused in various ways. This right is often used for giving unlawful justifications for the crime committed. This right is also used with the malicious intention to take revenge or vengeance. Such misuse puts pressure on courts to decide a matter with full reasonability and rationality. Every aspect of the matter is to be dealt with critical analysis so that justice must prevail.
The legal definition of Private Defence
This right is an affirmative defence which is used in a situation which possesses imminent threat or danger to a person’s life or property. It gives liberty to a person, but when that liberty is used for committing crimes or the right of private defence is used as means to give justification for any act forbidden by law the state has the power to impose severe punishment over such activities.
Section 96 of IPC states that If any act which is forbidden by law is done with respect to defence of body or property it will not amount to an offence. The force used in that act must be proportionate and reasonable.
If that act is done even though other remedial measures were available to avoid that act and consequences arising out of it the right of private defence will not be available then.
A, a person who is previously charged with the case of murder and who appears to be aggressive and stubborn picked a quarrel with B. After a heated argument A attacked B with a knife. B has the right of private defence to protect himself from the violent act.
Limitations of private defence
The right to private defence in certain situations may not be available to a person. As stated in section 99 of IPC following are the limitations-
- If a person does an act with a benevolent intention which does not give rise to the assumption of any kind of threat or danger.
- Proportionate force is to be used
- When the person have time to recourse and take protection of the public official.
- If an act is done or directed by a public official with bonafide intention that is, for the welfare of the general public, and when the act was of such nature that the person has time to take remedial measure and protection of the public authorities.
The right of private defence shall only be exercised with the purpose of inflicting injury required.
Explanation I- a right of private defence is still available to a person against the act of a public official unless he knows or has a reason to believe that such person is a public official.
Explanation II- A person is not deprived by the right unless he knows that the act is to be done by a person directed by a public official or if he states the authority under which he acts.
Case- Emperor vs. Mammum
In the instant case, the accused pleaded the right of private defence on being charged with murder. It was held that they had time to recourse the protection of public authority instead of taking the matter in their own hand and brutally assaulting and killing the trespasser who was cutting rice in their field.
Ajodha prasad vs state of U.P 1924
In the instant case the information was given to the accused that they will be attacked by some villagers. They decided to stay together as there is more threat of being pursued if they seperate to report it to the police and waited. When they were attacked by the villagers they defended themselves in which a villager died. It was held that the accused did not exceed the right of private defence.
Types of private defence
Private defence to body
Private defence to property(movable and immovable)
Subject to limitations under section 99 a person can exercise his right of private defence when there appears to be a reasonable apprehension of threat and danger. It is the moral duty of a person to defend his body and property and then the body property of others.
As Bentham said: every honest man shall consider himself as the protector of each other. Section 97 of IPC states that every person has the right of private defence in two folds-
- Right of private defence to body.
- Right of private defence to property(movable or immovable).
If A and B breaks into the house of Z at night with the purpose of robbery, then Z has the right to defend his body and property with proportionate force and if readily measures are available he should also take the assistance of public official.
Hamsa v. State of Kerela 1989 CrLJ NOC 158(Ker).
In this case the accused exceeded the right to private defence as his intention was not just to take defence and save his father (who summoned the accused after receiving a blow in the head) but to take revenge by stabbing the deceased twice.
Mannu V. State of U.P
In the instant case, it was held that the right of private defence can’t be used to commit an offence or to take revenge. It is the right for the protection of body and property from external threat.
Continuance of private defence
In the case of body
In case of property
In case of body
As soon as a person has the reasonable assumption of the imminent danger or threat to the body by the wrongdoer the right to private defence can be availed by the person. It lasts until the assumption of danger continues. The danger must be of such nature which should be of imminent threat in the eyes of law.
kala singh case
In the instant case, the deceased had a heated argument with the accused and ground and pound him. When the accused was free from the grip of the deceased gave him three serious blows in the head through a light hatchet which resulted in the death of the brute. It was held that the accused exceeded the right of private defence even though the nature and acts of the deceased were violent and aggressive but the force used by the accused was not proportionate and reasonable.
In case of property
The right of private defence begins with the commencement of such reasonable apprehension which threats to cause imminent danger.
- In case of theft, the assumption continues until the offender has effected his retreat from the property or either the person has taken the protection of a public official or the property has been retrieved.
- Against robbery, it lasts as long as the offender has caused or attempts to cause death, wrongful restraint, or hurt or even causes fear of instant hurt death or wrongful confinement.
- In the case of criminal trespass, it continues until the wrong-doer continues its commission.
When the right extends to causing death
In the case of the body
Subject to restrictions enshrined under the section 99 the right of private defence of the body extends to voluntarily causing the death of a person if the offences are from the list given below -(Section 100)
- An assault that may cause the apprehension of death or imminent threat or danger.
- Assault with the intention of committing rape.
- Assault with the intention of committing wrongful confinement.
- Assault with the intention of abduction and kidnapping.
- Assault with gratifying unnatural lust.
Conditions required to invoke the jurisdiction of this provision
- If there is an imminent threat to life.
- Such bodily injury that may either result in the death of the person or permanent disablement.
A with the intention to rape B abducted her. B on having the reasonable apprehension of imminent threat or danger to her life kills A. B can avail the right of private defence.
Case- Nand Kishore lal
In the instant case accused (who were Sikhs) abducted a married Muslim woman and converted her to Sikhism. One year later the relatives of the women demanded her back which ends up resulting in a quarrel between them. In the heat of the moment accused gave a blow to the women’s assailant which resulted in his death and exceeding his right of private defence causing the death of the person.
In case of property
Subject to the restrictions under restrictions section 99, the right of private defence of property extends to causing death in the enumerated conditions or circumstances:
- House-breaking by night
- Mischief by fire
A and B committed robbery in Z’s house when he was sleeping. While they were halfway through Z woke up and tried to stop them in which A took out his gun and fire a shot at Z. Z in his defence gave a serious blow in the head of A which resulted in his death. Z has the right of private defence.
Case- Jessa singh vs State of Haryana
In the instant case, it was held that right of private defence of the property will not extend to the killing of a person who committed the act of trespass in open land.
In order to determine whether the actions of the accused are justifiable or not, one has to look into the benevolent intention of the accused.
Private defence- Extends to causing other harms
In case of body
When an act or an offence is of great threat and danger but does not fall under the given description of offences mentioned under the section 100 of IPC(which specifies the gravity of offences in which rights extend to causing death) and does not extend to causing voluntarily death, the right of private defence extends to causing harms other than death.
A made a gesture of hitting B with a knife. B in a sudden reflex shot A which resulted in his death. The right of private defence will not be available to A.
In the instant case, the accused shot one of his worker who throwing brickbat in the factory resulting in the death of the person. It was held that there was no assumption of threat present.
In case of property
If an offence does not fall in the enumerated list prescribed in section 103 of IPC it will not extend to causing voluntarily death of a person. It is subjected to limitations under section 99.
A snatched the phone of B. In order to retrieve his phone back he followed B and brutally assaulted him which resulted in his death. B will be charged with murder and the right of private defence will not be available to him.
Private defence against a lunatic
Any person who is of unsound mind or lunatic or lacks the ability to think rationally does an act forbidden by law and which possess imminent danger to the life and property of other persons, the right to private defence is still available. However the lunatic will not suffer any legal consequences for the act committed. Section 98 of IPC deals with situations of such nature.
For eg. (A)-If A, (lunatic) tries to kill B, then he has the right to private defence against A.
(B)- If A who is heavily intoxicated comes under a heated argument with B and tries to stab him though he is not in his senses but the right of private defence is still available to B.
Causing death of an innocent person
If a person assumes that an assault is likely to cause death he can exercise his right of private defence even though in the exercise of such right there is a threat to the life of an innocent person.
For eg. If a person is attacked by a group of people who are intending to kill him. In his private defence he can fire at the mob and can also risk harming innocent people.
It can be concluded that private defence is a right available to an individual to defend his body and property. Though there are times when this right is misused for the commission of a crime, it depends upon the court to decide on the basis of facts and circumstances of the case whether the act was done in good faith or not. In cases of private defence following points are taken into consideration-
- Reasonable apprehension of threat
- Proportionate force
- Time to recourse