This article is written by Aanika Aery, currently pursuing B.B.A. LLB from Symbiosis Law School, Noida. This is an exhaustive article which deals with tainted use of private defence through its nature, exercise and misconduct.
Table of Contents
Introduction
The Law relating to the privacy of individuals, right of private defence and properties are set out in Sections 96 to 106 of the IPC.
The provisions in these sections authorize a person, in order to safeguard his own body and property, to use the force necessary against an assailant or wrongdoer if immediate assistance from the State machinery is not readily available and therefore he is not liable in law for his actions. In Section 97, private defence rights of two types are established: (i) private body defence rights and (ii) private property defence rights.
The body may be one’s own body or another’s body and even property could be moving or immovable and be one’s and some other person’s. The first rule of law is self-help. In order to protect one’s life, rights and property, the right to privacy protection is absolutely necessary. It is a human right. However, legislation governs minutely the form and quantity of force. The right to private defence is called the use of force to protect one’s property or person.
Nature of private defence
It is the human being’s first duty to help. In the people of every free country, the right to self-defence must be promoted. In every scheme of law, the right is acknowledged and differs according to the reverse ratio to the State’s capacity to protect the person’s life and property. It is the state’s main duty to protect individuals’ lives, but no state should allow a police officer to dog the step of every rogue in the world, no matter how large its resources. The State has therefore, granted this right to take the law into its own hand to ensure the safety of each citizen of the country.
One thing should be clear, when the time comes to resort to the safety of police authorities, there is no right to private security. The right does not depend on the actual crime of the resisted individual. If it is true and reasonable to be apprehended it makes no difference that it is wrong. it only depends on the wrong or apparent wrongful nature of the attempted act. An act carried out to exercise this right does not constitute an offence and thus, does not create any private defence right in return.
Exercise of this right
This is the general principle that “necessity knows no law” and “the first job of the man is to support himself first.” This is what right to self-defence is all about. Everyone has a right to self-preserve, but nothing can be done that will go against another person’s right.
In one case, the Supreme Court held that private protection granted by the Penal Code is simply a right to self-defence and not to reprisal or punishment. This right was subject to restrictions as essential as the right itself as laid down in Section 99. One was that the damage done to self-defence would only be legitimately required for defence. In addition, with the beginning and presence of adequate perception of the danger to the body from the attempt or threat of committing the crime, the right became coterminous as specified in Section 102 of the IPC. The general exception to criminal responsibility does not involve an attack by way of revenge.
This right is a shield against the bad elements of society, but it is the question of what if this shield is used as a weapon. Firstly, the harm caused by self-defence can only be valid for the purpose of defence and that a significant change to this limitation was previously focused on the firearm used but that the emphasis now is on the part of the body that is, therefore, being assaulted in the case of DeoNarain.
The second is if the self-defence move was really for self-defence. In the exercise of the right to privacy protection, this act can not, in effect, give rise to any private defence, for the benefit of the aggressor. This statute is not allowed for an offence. Personal protection privileges are not granted. Therefore, when the person charged, himself goes with the gun and assaults the victim, he is unable to appeal for the right to self-defence by murdering him. The deceased who was the attacker struck the head of the father of the defendant hard with the stick in Hamsa v. State of Kerala in 1989 CrLJ NOC 158(Ker). The father called for help, and a stab wound with an ordinary knife was provided by the accused to prevent the victim. The accused had been well within the field of self-defence before this point. When he was stabbed again by the defendant, he violated the right to self-defence and his desire to save became a killing scheme.
Therefore, the courts must be vigilant to make sure that no one takes sides in a dispute between two or more people under a clear excuse of exercising their rights to protect themselves and cause injury to both of them. The third-party will hurt him under the mere excuse of exercising the right to personal defence when he sees that one of his rivals is engaged in a battle. When two parties clash openly without specifying who is the initial aggressor, it may, therefore, in general, be risky to wear the right to a private defence either of them or his supporter. The main purpose of Section 100 of the Indian Penal Code is that it states that the rights of private protection, even against unarmed attackers, can be claimed; thus, even when the accused has given a perfect form to his criminal intention, the accused has a proper excuse. This widespread reach makes it unjustifiable, but every coin has two sides and it has its merits.
Guidelines set by the Supreme Court
In Darshan Singh v. The State of Punjab, the following rules were laid down by the Supreme Court for the right to privacy: “All civilized countries can act on private defence but within acceptable limits. The criminal jurisprudence of all civilized countries properly acknowledges the defence of oneself.
- Only when an individual is required to face the risk and not of self-creation is the right to private defence available.
- Only fair apprehension will allow self-defence to be exercised. An actual commission of the crime would not be required to give rise to the right of personal defence.
- It is necessary for the defendant to apprehend that if private defence rights are not exercised, an offence is likely to be committed.
- When there is a rational fear, the right to privacy protection begins and continues to exist.
- One individual under attack can not be expected to use his defence gradually.
- In private security, for the safety of the individual or property, the force used by the accused must be fair and appropriate.
- If the defendant refuses to defend himself, the court shall be able to weigh the possibility of such a defence based on the records of the facts.
- The complainant would not have to justify beyond a reasonable doubt that there was a right to privacy.
- The Indian Penal Code only allows for the right to privacy protection.
- When a person has an immediate and fair risk of losing his or her life or limb, he or she can exercise the right to self-defence to inflict harm that could destroy his aggressor.
Misuse of the right of defence
The private defence is the legal right to protect a person against any external threat to the body and property. Today, this right is misused in many respects. This right is often used to justify the crime committed illegally. This right is often used to take revenge or retribution with a malicious motive. Such an injustice forces the courts to resolve a question with absolute reasonableness and rationality. Critical consideration needs to be applied to any part of the matter so that justice prevails. In the case of Darshan Singh vs State Of Punjab & Anr , it was recently held that there was a conflict between families. Gurcharan Singh was Bakhtawar Singh ‘s brother and Darshan Singh ‘s uncle. The appellant Darshan Singh only shook after his father Bakhtawar Singh received a grave wound incurred by a Gandasa, and then he fired two shots in order to save his life which led to the death of the late Gurcharan Singh. The trial court ruled, after all of the facts had been provided, that the outcome of the case is much more favourable to the defence than to the prosecution.
Right to self-defence is an essential component of the Indian Penal Code that allows a person’s defence during an assault. None, not even a lifetime of the attacker, is an offence when you try to save your own life.
However, this privilege can only be given to the perpetrator and not to him, as the offender denies his right to defend himself, which has been ruled by a bench consisting of Judges A Mathur and D K Jain. Many recent judgements represent a misuse of this essential right. In both of these cases, the attacker’s self-defence plea is based on his injuries during the assault against the victims, whose defence is weak. The person who is threatened with life and property has the right to use force or even to kill the attacker. The powers used for protection “must not be disproportionate to the damage to be stopped or apprehended fairly.”
The Bench understood that the power to be used by the survivor in self-defence could not be quantified.”It can not be measured on a golden scale by the means and the power of a threatened person to escape the danger and to save him or his belongings.”However, it was clear in his view that the practice of private defence, because it would be gross, should never be vindictive or malicious. It was given as a right of protection for each and every individual citizen of India, but it is sometimes misused by many by using it as an excuse for crimes and offences. This right should be viewed as the State’s duty to protect its people and properties. This right to privacy protection is also subject to certain limitations and restrictions. Although the citizens of India have been given the right to privacy protection as a tool for their own safety, many people still use it for bad or illegal purposes. Now the Court has a duty and obligation to test whether or not the right has been exercised in good faith.
The law has evolved over the years in the Supreme Court of India’s rulings and decisions. The “reasonability” of the defence used is one of the most essential concepts of private defence. There are various restrictions and exceptions to this right and they are set out in the paper. Such solutions are even accessible when the term ‘ubi jus ibi remedium’ is misused, i.e. when a cure exists. This has been accorded to all Indian people as a right of self-protection but is still exploited as an excuse for any crime or crimes. It is a right for defence, not revenge and can not be used for revenge purposes.
This right of privacy protection, i.e. where acts by a person are legal and do not give rise to any crime, can not be used against any lawful act. Often people cause others to behave violently and use it as an excuse for the damage and killing that they are doing. But this can not be seen because only the accused showed the violence. It is known to be a killing license by many, as the IPC is not clear if an attack may be a murder pretence. However, the Court noted that privacy protection should not be used for purposes of unlawful act or provocation by people who are acting in good faith. It was also stated by the Court that “the criminal code has definitely not invented a method for inciting an assault as a pretence for killing while enshrining the right to self-defence.”
Conclusion
Although the citizens of India have been given the right to privacy protection as a tool for their own safety, many people still use it for bad or illegal purposes. Now the Court has a duty and obligation to test whether or not the right has been exercised in good faith. The Court must take account of several important points in its decision: injuries sustained by the defendant, Injuries to the accused, the issue of whether or not state assistance is available (whether the accused has adequate time to contact the public authorities).
Although in the case of Munshi Ram vs State of Delhi, U.P vs. Ram Swarup and several other cases, the Indian Penal Code does not clearly describe the right and has grown with judgments and judgments of the Court in a range of major cases. It is claimed, however, that the terms of these sections do not explain any more than the tribunals have done before, because of the statutory prospect of granting the courts such broad discretion that they can cover the entire spectrum of circumstances that may occur to meet the ends of justice within their jurisdiction.
The scope of the exercise of the right does not depend on real danger but on a rational perception of the danger (whether the danger is fair). When you unexpectedly face the immediate necessity of preventing an imminent harm, the right to privilege is open, as soon as rational anxiety occurs and fear continues. The right can only be applied to any degree by an accused person under such cases under which the right to privacy protection is no longer invalidated, i.e. only such an amount of force is needed to suppress or combat the threat.
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