Private defence is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. In layman’s language it implies the use of otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime. Section 96 to 106 of Indian Penal Code 1860 contains the provisions regarding the right of private defence available to every citizen of India. . Citizens of every free country should be provided with the right of private defence in order to protect themselves from any imminent danger at the time when the state aid is not available or possible. This right should be read with the duty of the state to protect its citizens as well as their property It was granted as a right for self protection to every citizen of India but it is often misused by many people by treating it as an excuse of committing any crime or offence. Therefore this right to private defence is subject to certain restrictions and limitations. Though the right of private defence was granted to citizens of India as a weapon for their self defence this is often used by many people for evil purposes or unlawful purposes. Now it is the duty and responsibility of the court to examine whether the right was exercised in a good faith or not. The extent of exercise of this right doesn’t depend on actual danger but instead on the reasonable apprehension of the danger. . The right can be extended by an accused in some circumstances but only to a certain degree, which would not invalidate the right of private defence.
Keywords: extent, good faith, imminent, invalidate limitations, extent, reasonable apprehension, unlawful.
In layman’s language it implies the use of otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime. Section 96 to 106 of Indian Penal Code 1860 contains the provisions regarding the right of private defense available to every citizen of India. This right can only be exercised in case of overhanging danger and state aid or help is not available. . This right has basically evolved with the time by judgments and decisions of the Supreme Court of India. One of the most important principles of private defense is the ‘reasonableness’ of the defense used. There are various limitations as well as exceptions to this right and will be stated in the paper. Some remedies are also available in case of misuse of this right according to the maxim ‘ubi jus ibi remedium’ i.e. where there is a right there is a remedy.
Identification of Issues
• The right to private defense is available only when recourse to public authorities is not available to the person.
• The extent of the exercise of the right is not dependent on the extent of actual danger but on the reasonableness of the apprehension of the danger.
• Misuse of the right of private defense.
• Burden of proof in cases of private defense.
• Reasonableness of the defense used.
Objectives and scope of research
• To study the right of Private defence available under section 96 to 106 of Indian Penal Code 1860.
• To investigate various necessities, limitations and exceptions to this right and its applicability in Indian as well as other legal systems.
• To study the judicial perspective of private defence and analyze it.
Research methodology followed by me is purely doctrinal and does not involve empirical approach. My research is based on the authoritative texts. The sources for completion of this dissertation will be both primary and secondary. Primary to the extent that the books will be referred. Data will be collected from judgments and legislation’s. Secondary resources such as World Wide Web and articles published therein will also be made use of.
• Concept of Private defense in Indian Legal system and in other legal systems
• Judicial Perspective and leading cases
The right of Private Defense under IPC
It is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. In layman’s language it is basically a right of self defence. It is mentioned in the sections 96 to 106 of Indian Penal Code 1860.’Nothing is an offence which is done in exercise of the right of private defence’- It implies any harm done or injury caused to any person in the course of protecting himself from the external force or harm is not an offence as per Indian Penal Code 1860.
The right of Private defence has evolved in modern India but initially it was proposed by an ebullient Macaulay 150 years ago in his draft code with the aspiring task of empowering a “manly spirit among the natives or locals. An ideal Indian in case of any risk or danger would persevere and not be reluctant to protect his own body or property, or that of another. He would react with cautious power to avoid certain harms and injuries even to the degree of causing death of someone.
In most common language it implies the use of generally or otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime. Simply it can be termed as any action done in the course of self protection. According to Article 51(a)(i) of Indian Constitution the State is having a fundamental duty of the state to protect public property and abjure violence. It implies that it is the fundamental duty of the state to protect its citizens and their property from any harm, and in case the aid or help of state is not available and the danger is overhanging and is unavoidable at the moment then the person is authorized to use his force to protect himself from any harm or injury. The term private defence is not properly defined anywhere in penal code, it has generally developed and evolved over the years by the judgments of the various courts. The main motive behind providing this right to every citizen was to remove their hesitation in taking any action (generally illegal) to protect themselves due to the fear of prosecution.
Self help is the first principle i.e. it is the first duty of a person to help himself. Citizens of every free country should be provided with the right of private defence in order to protect themselves from any imminent danger at the time when the state aid is not available or possible. This right should be read with the duty of the state to protect its citizens as well as their property. But no state, no matter how much rich it is or how large are its resources can afford to deploy a policemen for each and every citizen to protect themselves from any external harm or injury. So in order to fulfill its fundamental duty it has given this power to the citizens itself, that they are authorized by the state to take the law in their own hands if it’s the matter of their self defence. While exercising this right one thing should be taken into consideration that the right of private defence can only be exercised if there is no time to call the police or no help can be provided by the state authorities in the given time i.e. aid from the state is not available. Any unlawful act committed by any person in course of self defence is not considered as an offence and does not, therefore, give rise to any right of private defence in return. The right is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted, if the apprehension is real and reasonable, it makes no difference that it is mistaken.
Scope of Private Defence
Sec 97 of IPC states that every citizen is having this right subject to certain restrictions (mentioned in sec 99) to defend his own body or body of any other person, against; any offence affecting to the human body; the property whether immovable or movable, of himself or of any other person, against any act, which is an offence falling under the definition of robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.
This implies that Self help is the first principle i.e. it is the duty of a person to help himself and then arises a social duty to help other members of the society. The social duty arises out of the Human sympathy to protect others and their property.
As per sec 98 of IPC when an act which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act was that offence
And according to sec 106 of penal code If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk or harm to an innocent person, his right of private defence extends to the running of that risk.
The extent of the right of private defence and the limitations in the exercise of this right may be summarized as below: —
(1) There is no right of private defence against an act which is not in itself an offence under this Code. This does not cover the case of exceptions.
(2) The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.
(3) It is defensive and not a punitive or retributive right. In no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, though reasonable allowance should be made for bona fide defender.
(4) The right extends to the killing of actual assailant when there is a reasonable and imminent danger of the atrocious crimes enumerated in the six clause s of Section 100.
(5) There must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
(6) The right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to the protection of public authorities.
It was granted as a right for self protection to every citizen of India but it is often misused by many people by treating it as an excuse of committing any crime or offence. It is a right granted for defence and not for vengeance and may not be used as a measure of taking revenge. This right of private defence is not available against any lawful action i.e. when the actions of a person are lawful and not resulting into any offence the right of private defence can’t be utilized. Sometimes some people provoke others to act in aggression and use it as an excuse for the harm caused and even murder. But this can’t be used in a situation where the aggression was shown by the accused only. It is treated as license to kill by many people as the IPC is not in clear on the situation where an attack may be provoked as pretence of killing. But the court has asserted that the private defence is available only to the persons who act in good faith and don’t misuse ita as an excuse to justify their unlawful act or act of aggression. it was further stated by the court “while providing for the right of private defence, the penal code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing”.
The Right of Private Defence in other legal systems:
The right of Private defence in American legal system is quite similar as in Indian legal system
Two points of utmost importance in American legal system:
- Principle of reasonableness i.e. the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.
- Force should be proportionate to the harm i.e. only that amount force should be used that is necessary to avoid the threatened injury or harm.
In English legal system the right of private defence is granted under Criminal law act 1967. Sec 3(1) of this act states that A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Sec 3(2) – Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.
In English Legal system this right helps in complete discharge or acquittal of a defendant as the force used by him wasn’t illegal. But whether he should be acquitted or not depends on the decision of the court. The court analyses the reasonableness of the defence used by him. The court analyses:
- Reasonableness of the defence i.e. the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.
- Injuries caused by the accused
- Injuries caused to the accused
- Accession of threat to his safety
According to the jury a person should act in good faith and don’t try to misuse this right by using it as an excuse of justifying their legal act and get acquitted for their offence. Like Indian legal system the right of private defence in English legal system has evolved over the years with the judicial decisions and judgments.
In Beckford vs. the Queen it was held that
|A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable.|
In Lord Morris in Palmer v R stated the following about someone confronted by an intruder or defending himself against attack:
|If there has been an attack so that defence is reasonably necessary, it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary that would be the most potent evidence that only reasonable defensive action had been taken||”|
In case of Palmer v The Queen, on appeal to the Privy Council in 1971 the concept of reasonable force was defined:
|The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. … Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. … It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence… If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.||”|
Judicial Perspective and leading cases
The framers of Indian penal code left this concept of Private defence in a ‘imperfect state’ i.e. the term private defence is not properly defined in the provisions of penal code , it usually developed or evolved over the years with judgments and decisions of the courts. The provisions were framed by the framers of the code in a way that such provisions can be interpreted and analyzed by the judiciary and can be modified according to different situations and cases to maintain the principle of fairness while providing justice to the people of our country i.e. they left it in a flexible state. They followed the Rawls principle of justice that it is the moral obligation of the court to act on the basis of fair adjudication between competing claims. As such it is linked to fairness, entitlement and equality. And also justice can’t be sacrificed on account of cost, speed and expediency. But their intention was only partly fulfilled as the local judiciary acts in a bit strict manner in comparison to higher judiciary while interpreting this term private defence and this inconsistency between the judicial interpretation and the intention is mentioned in the sections 100 and 102 of penal code(explained under the head of ‘reasonable apprehension’). The Court interpreted and analyzed the right of private defence in various landmark cases.
Munshi ram and others vs. Delhi administration
Though the appellants in their statement under S.342 Cr.P.C denied having been present at the scene of occurrence or having caused injuries to anyone, the plea taken on their behalf at all stages was one of private defence. Their case is that their relation Jamuna (DW3) was the tenant in the land for over thirty years. His tenancy was never terminated. He had raised crops in the field in question. There was no delivery on June 22, 1962. If there was any delivery as alleged by the prosecution, the same was without the authority of law and such was no effect. Hence, jamuna continued to be in possession of the property even on July 1, 1962. On the day prior to occurrence, PWs 17 and 19 tried to intimidate jamuna to come to terms with them and to peacefully deliver the possession of property to them. But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return. With a view to forcibly assert their right to the property, the complainant-party came to the field in a body on July 1, 1962with a tractor. At that time PW 19 was armed with an unlicensed pistol. It is at this stage that the appellants who are near relations of Jamuna went on the field and asked the complainant party to clear out of the field. When they refused to do so, they pushed them and thereafter used minimum force to throw them out of the field. On the basis of the above facts, it was urged on behalf of the appellants that they were not guilty of any offence.
The law relating to defence of property is, set out in S.97 IPC, which says that every person has a right, subject to the restrictions contained in s.99, to defend-First-his own body, and the body of any other person, against any offence affecting the human body; Secondly- the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 of the code lays down that there is time to have recourse to the protection of public authorities. It further lays down that the right of private defence in no case extends to the inflicting of more harm then it is necessary to inflict for the purpose of defence.
It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of public authorities and therefore the appellants could not claim the right of private defence. The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22, 1962. Admittedly neither jamuna nor any of the appellants were present at the time of delivery. Nor is there any evidence on record to show that they were aware of: the same. Further, as seen earlier, the conversation that PWs 17 and 19 had with jamuna on the day prior to the occurrence, proceeded on the basis that Jamuna was still in possession of the field. Under these circumstances when the complainant party invaded the field on July 1 1962, Jamuna’s relations must have been naturally taken by surprise. Law does not require a person whose property is forcibly tried to be occupied by the trespassers to run away and seek the protection of the authorities. The right of private defence serves as a social purpose and that right should be liberally construed. Such a right not only will be restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit to run away in the face of peril.
State of UP vs. Ram Swarup
Facts- On 7th June 1970 at about 7 a.m. one Ganga Ram went to the market to purchase a basket of melons in subzi mandi Badauin, Uttar Pradesh. A person called Sahib Datta Mal alias Munimji who was the melons vendor refused to sell it saying that it was already marked for another customer. This led to the exchange of hot words and Munimji asserting his authority said that he was the thekedar of the market and his words were final. Ganga Ram could not take the challenge and left in huff.
“The Supreme Court Held that the right of private defence is a right of defence, not retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right to be conceded to a person who stage-manages a situation where in the right can be used as a shield to justify an act of aggression.”
An hour later Ganga ram along with his three sons Ram Swarup, Somi and Subhash went back to the market. Ganga ram had a knife, Ram Swarup had a gun and two others carried lathis. They advanced aggressively to the car of Munimji who, taken by surprise rushed to take shelter in the neighboring kothi. But before he could retreat Ram Swarup shot him dead at point black range.
All four accomplices were tried under Sec 302 of Indian penal Code for murder of Munimji. Ram Swarup was convicted to life imprisonment by the session’s court. However, Somi and subhash were acquitted. The High Court of Allahabad acquitted Ganga Ram and Ram Swarup in an appeal filed by them and dismissed the appeal filed by the state against the acquittal of Somi and Subhash. The defence taken by the accused was that when at 8 a.m. they reached the market, there was a scuffle between the deceased Munimji and Ganga ram, and Ganga Ram was being assaulted by lathis by the servants of the deceased and seeing his father’s life in danger Ram Swarup fired shots from the gun he was carrying in the right of private defence.
And this case 2 most important questions were answered by the court:
- What constitutes Private defence?
- Whether the accused herein is having the right of private defence in the given set of circumstances?
“Sec 100 of IPC providing right of private defence of the body, extends to the voluntary causing of the death, if the offence which occasions the exercise of the right is of such nature as may, to the extent material, reasonably cause the apprehension that the death or grievous hurt will otherwise be the consequence of the assault”.
According to Supreme court the IPC doesn’t provide the right of private defence as a causing of death, if the offence which occasions the exercise of the right is of such nature as may, to the extent material, reasonably cause the apprehension that the death or grievous hurt will otherwise be the consequence of assault. It was held that in the present case the circumstances were not such that Ram Swarup would have been held compelled to kill the deceased by firing. The mere possibility of the scuffle, cannot justify the killing of the deceased. Therefore, the plea of Right of Private defence taken Swarup was dismissed.
The principles laid down by the Supreme Court are very relevant and the same has become precedent to for a plea of right of private defence.
Darshan Singh v. State of Punjab
The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It observed that a person cannot be expected to act in a cowardly manner when confronted with an imminent threat to life and has got every right to kill the aggressor in self defense. A bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature clearly intended to arouse and encourage the spirit of self-defense amongst the citizens, when faced with grave danger.“ The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court, there is nothing more degrading to the human spirit than to run away in face of danger. Right of private defense is thus designed to serve a social purpose and deserves to be fostered within the prescribed limit.”
The court laid down ten guidelines where right of self-defence is available to a citizen, but also warned that in the disguise of self-defence, one cannot be allowed to endanger or threaten the lives and properties of others or for the purpose of taking personal revenge. The apex court concluded by saying that a person who is under imminent threat is not expected to use force exactly required to repel the attack and his behaviour cannot be weighed on “golden scales.”
The Court declared their legal position under the following 10 guidelines:
- Self-preservation is a basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defense within certain reasonable limits.
- The right of private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
- A mere reasonable apprehension is enough to put the right of self-defense into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defense is not exercised.
- The right of private defense commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
- It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
- In private defense the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
- It is well settled that even if the accused does not plead self-defense, it is open to consider such a plea if the same arises from the material on record.
- The accused need not prove the existence of the right of private defense beyond reasonable doubt.
- The Indian Penal Code confers the right of private defense only when the unlawful or wrongful act is an offence.
- A person who is in imminent and reasonable danger of losing his life or limb may, in exercise of self defense, inflict any harm (even extending to death) on his assailant either when the assault is attempted or directly threatened.[ix]
Though the right of private defence was granted to citizens of India as a weapon for their self defence this is often used by many people for evil purposes or unlawful purposes. Now it is the duty and responsibility of the court to examine whether the right was exercised in a good faith or not. There are several important points that the court will take into consideration while making its decision:
- Injuries caused by the accused
- Injuries caused to the accused
- Whether the state aid was available ( whether the accused had time to contact the public authorities)
- Accession of threat to his safety
Also the Indian Penal Code doesn’t properly define this right and it has evolved over the years with judgments and decisions of the Courts in various landmark cases as stated above for example Munshi ram and others vs. Delhi Administration, State of U.P vs. Ram Swarup and several other cases. But it is also argued that the wordings of the sections need no further clarification than has already been done by the courts as it was the foresight of the legislature to grant such wide discretion to the courts that they may cover within their ambit, the entire gamut of situations which might arise and meet the ends of justice.
The extent of exercise of this right doesn’t depend on actual danger but instead on the reasonable apprehension of the danger (whether there was any reasonable apprehension of the danger) . The right of private defence is available when one is suddenly confronted with the immediate necessity of averting and impending danger, it commences as soon as reasonable apprehension arises and continues with apprehension. The right can be extended by an accused in some circumstances but only to a certain degree, that would not invalidate the right of private defence i.e. only such amount of force should be used that is required to dispel the threat or counter the attack.