If a person does an act while exercising his right of private defence, his act would be no offence (Section 96). Right of private defence is based upon the instinct of self-preservation. This instinct is vested in every human being and has been recognised by the law in all the civilized countries. The need for self-preservation is rooted in the doctrine of necessity.
Common law has always recognised the right of a person to protect himself from attack and to act in defence of others. In this process, he can inflict violence on another, if necessary. The person who is about to be attacked does not have to wait for the assailant to attack first.
The right of private defence of people is recognised in all free, civilised and democratic societies within certain reasonable limits. Those limits are dictated in two considerations :
- Every member of the society can claim this right
- That the state takes responsibility for the maintenance of law and order
Right of private defence is preventive and not punitive.
Supreme Court said that the right of private defence is a defensive right surrounded by the law and is available only when the person is able to justify his circumstances. This right is available against an offence and therefore, where an act is done in exercise of the right of private defence, such an act cannot go in favour of the aggressor. In the case of Darshan Singh v. State of Punjab, the Supreme Court gave the following principles to govern the ‘right to private defence’:
“All the civilized countries recognise the right of private defence but of-course with reasonable limits. Self-preservation is duly recognized by the criminal jurisprudence of all civilized countries. The right of private defence is available only when the person is under necessity to tackle the danger and not of self-creation.”
Only a reasonable apprehension is enough to exercise the right of self-defence. It is not necessary that there should be an actual commission of the offence to give rise to the right of private defence. It is enough if the accused apprehended that an offence is likely to be committed if the right of private defence is not exercised.
The right of private defence commences as soon as a reasonable apprehension arises and continues till the time such apprehension exists. We cannot expect a person under assault to use his defence in a step by step manner. In private defence, the force used by the accused must be reasonable and necessary for the protection of the person or property.
If the accused does not plead self-defense, the court can consider the chances of the existence of such defence depending upon the material on record. There is no need for the accused to prove beyond reasonable doubt that the right of private defence existed. Under the Indian Penal Code the right of private defence exists only against an offence.
Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence. The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend.
The right of private defence has to be exercised directly in proportion to the extent of aggression. There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact.
In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea. Certain factors need to be kept in mind in considering the act of private defence:
- If there was sufficient time for recourse to public authorities or not
- If the harm caused was more than what was necessary to be caused or not
- If there was a necessity to take such action or not
- If the accused person was the aggressor or not
- If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property.
Section 97 states that the right of private defence is available against the body and property only. Along with this, Section 99 states the exceptions to the rule of private defence. Both of these sections together lay down the principles of the right of private defence.
The right of private defence against Body
Under section 97, every person has a right to defend his body or of any other person or to defend against any offence which affects the human body. The person can also exercise the right against his property including both movable property such as a car or jewellery and immovable property such as land or house.
The right of private defence against property
A person can also exercise the right against the property of other people along with his own property. The right of private defence against property can only be exercised against offences in the category of theft, robbery, mischief or criminal trespass or against theft, mischief or house- trespass the person is under reasonable fear of probable death or grievous hurt.
Every person has a right to dispose of his property and to throw away any trespasser who enters into the property without permission. But if the trespasser has the possession of the property and the owner knows about it, the right of private defence is not available to the owner. For example, tenant.
The right of self-defence against a trespasser is available till the time the trespasser is actually on the land. If the trespasser tries to dispossess the owner from the property, the owner has the right to inflict such injuries over the trespasser to dispossess him from the property. The moment the trespasser is dispossessed, the owner’s right of private defence is expired and he cannot take laws in his hands and injure the trespasser. There are cases where the private defence is available against the owner. If the person is in lawful possession of the property and the owner tries to dispossess him from the property, the possessor of the property has a right to exercise self- defence.
For exercising such right, following conditions needs to be fulfilled
- The trespasser must be in actual physical possession of the property over a sufficiently long period.
- The possession must be in knowledge of the owner, either expressed or without any concealment of fact.
- The process of dispossession of the true owner by the trespasser must be complete and final.
In case of culturable land, if the possessor has grown any crop on the land then none including the true owner has a right to destroy those crops.
The right of private defence of property is available to prevent theft, robbery, mischief or criminal trespass or an attempt to commit any of these offences. Where the offence has been committed or the act constituting the offence has ceased, the right cannot be exercised.
In short, the law of private defence is summarised by a full bench of Orissa High court in the case of State of Orissa v. Rabindra Nath:
“It is the responsibility of the State to defend a person’s body and property. In the same way, it is the duty of every person to take shelter under the machinery of the state. But in case such aid is not available, he has the right of private defence.”
Whether or not a person was allowed to use his right of private defence without the recourse of public authorities depends upon the nature of threat of imminent danger. The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
After the actual danger has commenced, the question of applying for protection of the public authorities does not arise. The law does not expect a person to run away for protection under public authorities when someone attacks on a person in possession of the property. The moment reasonable apprehension of imminent danger to the property commences, the right of private defence is available to the individual. There is no duty on the accused to run for protection of public authorities.
When a person in possession is attacked by trespassers, he has the whole right to drive away the aggressors by application of force. When the person who is in physical possession of the property is dispossessed by the trespasser, he is entitled in exercise of the right of private defence to drive away such intruder provided that the trespasser has not obtained settled possession over the property.
If the accused although has the physical possession of the property but at the time of attack, if he is not present at the spot, is entitled to exercise his right to force aggressor to not to enter into the property or to turn away the aggressor when he comes to know that the trespasser is getting into possession of his property or is attempting to do so.
If there is an imminent danger to the property and the person in possession incurs sufficient injury, he is entitled to defend the act of aggressor without asking for the aid of the state.
When there is no serious loss to the property or no urgency for driving away from the trespasser, the person must recourse to state aid and not exercise any offence under the shelter of private defence. Where such person exercising the right is present on the property at the time trespass is attempted, he would ordinarily have the right of private defence as soon as his possession over the property is actually threatened. There can be an exception to the rule of seeking state aid in case where the aggressor tries to take advantage of the temporary absence of the person who has the settled possession of the property and attempts to trespass to the property.
Just because the location of police station was not away from the crime scene, it does not mean that a person cannot exercise his right of private defence. This can be taken into account if it is proved that could have been timely and effective. The effectiveness of the police help depends on the possibility that timely information to the police and obtaining timely assistance from the police was possible and effective.
In dealing with cases of private defence, a distinction must be made between enforcing a right and maintaining the right. If the aggressor was only preparing for the attack, this does not mean that the other person has no right of private defence. It must, however, be proved that there was no time to take recourse of public authorities.
Can you exercise the right of private defence against a person of unsound mind? (Section 98)
We know that a person of unsound mind is immune from getting punished for any offence. But what can we do if that person attacks or tries to harm our body or property? It is said that the immunity given to the insane person will not affect your right of private defence in any manner. Although any offence committed by an insane person is no offence in the eyes of the law; this won’t affect your right of private defence. An individual has the same right of private defence against an insane person as he has against a sane person. For example, a person under the influence of sleepwalking, tries to kill Mr. Gabbar. Mr. Gabbar in private defence hits that person with a stick causing hurt. Here, the person who is sleepwalking is guilty of no offence.
Mr. Gabbar, however, has a complete right of private defence. This right is applicable to other exceptional cases as well such as:
- A child below 12 years
- A person who lacks understanding
- A person with unsound mind
- An intoxicated person
Section 100 authorises a person to take away life
Section 100 authorises a person to take away life in exercise of his right of private defence against body. The basic idea behind Section 100 was that no innocent person should be punished. If a person has committed an offence in order to protect his or someone else’s person or property instead of running away from the spot; the law gives him the right to defend the concerned person or property
It is the duty of the court to check if the action of the accused is protected under the exceptions of Section 100 or not, even though the accused has not taken a plea. It is not necessary that the accused has obtained any injury or not. Mere reasonable apprehension would be sufficient for the exercise of right of private defence. The right of private defence can save a person from guilt even if he causes the death of another person in the following situations:
- The deceased was the actual assailant,
- There was a threat to life or of great bodily harm must be present,
- The threat must be real and apparent as to create honest belief that necessity exists,
- There must be no other reasonable or safe mode of escape,
- There must be a necessity of taking life
If the offence which is committed by the deceased and which had occasioned the cause of the exercise of the right of private defence of body and property falls within any of the seven categories enumerated in Sections 100 of the penal code. This Section exercises a limit on the right of private defence to the extent of absolute necessity. It must not be more than what is necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor. The question of private defence arises only when the prosecution has established that the act of the accused is an offence.
Fear of death: If there is an assault and a person has a reasonable fear that his death will cause if he will not kill that person.
Fear of grievous hurt: If there is an assault and a person has a reasonable fear that he will be grievously hurt if he will not kill that person.
To prove that the person was under fear of death or grievous hurt; the following conditions need to be fulfilled:
- The accused must not have caused the fault i.e. he must not have started the encounter first. It needs to be the victim who should cause the fear of death or grievous hurt without fault of the accused.
- There must be an approaching danger to life or of great bodily harm. This danger must be so evident and real that the other person felt the necessity to cause death.
- There must not be any other safe or reasonable way to escape from that situation.
- There must be a necessity to do so. The act of voluntarily causing death can be excused only when the person feels that it is necessary to act that way
- Reasonable Apprehension of danger:
The right of private defence of the body extends to voluntarily causing of death to the assailant during the assault if the victim has reasonable apprehension that grievous hurt would otherwise be the consequence. It is this apprehension in the mind of the victim which gives him the right of private defence to voluntarily cause death of the assailant
In considering the plea of self-defence, it is not to be considered that how many injuries have been inflicted upon the accused. It does not matter if any injury has been inflicted or not. What is to be considered is whether the accused had any reasonable apprehension of grievous hurt or death to himself or not.
Real or apparent danger:
The apprehension of death or grievous hurt which was present in the mind of the accused to enable him to invoke the aid of private defence is to be ascertained objectively with reference to events and deeds at the time of the offence and the surrounding circumstances.
Intention of Rape: If a person feels that the other person is committing assault with an intention of rape; the death can be committed for self-defence. In the case of State of orissa v. Nirupama Panda , the victim entered into the house of accused and tried to rape her. There was a scuffle between them and the accused lady finally stabbed the man and he died. She was not held liable because she was acting in her right of private defence.
Intention of satisfying unnatural lust: If a person is committing assault with an intention of satisfying his unnatural lust; the other person can exercise his right of private defence to the extent of causing the death of that person. It has been held in the case of Indu Kumari Pathak v. S. K. Pathak that if a wife refuses to submit to her husband for cohabitation, the husband is not expected to use force to make the wife to sexual intercourse. The husband has no right to cause injury to his wife in enforcing sexual intercourse and wife has the right of private defence to retaliate the force used on her .
Intention of kidnapping or abduction: If a person feels that the other person is acting with an intention of kidnapping or abducting him or any other person, he may use his right to cause death of kidnapper.
Intention of wrongful confinement: If a person feels that the other person is intending to wrongfully confine him or any other person and if the person is confined, he will not be able to escape or take help of public authorities for his release. In this case, he can exercise his right of private defence to cause death of another person.
Act of throwing or attempt to throw acid: This provision was not present in the original provision but observing the increasing rates of acid attack, this condition was added after recommendations of Justice J. S. Verma Committee under which a person, in certain circumstances may exercise his right of private defence to voluntarily cause harm or death to the assailant.
If a person is in fear that other person is going to throw acid or is attempting to throw acid and this may cause grievously hurt; He /she can exercise his/her right of private defence to cause death of that person. The act of throwing or attempting to throw acid is an offence under Section 326A and 326B of the Indian Penal Code.
The right of self-defence to cause death and the doctrine of necessity
The doctrine of necessity states that if an act is an offence, it will not be considered as one if the following conditions are satisfied :
- The act was done to avoid other harm which could not be avoided otherwise. If that situation was not avoided, it would have inflicted upon him or another person’s body or property, inevitable and irreparable evil.
- The force inflicted was reasonable as per the necessity
- The evil inflicted was proportionate to the evil avoided
As stated in KENNY on Outlines of Criminal, where the man has inflicted harm upon others person or property for the purpose of saving himself or others from greater harm, he is saved under this defence. One person, in private defence can kill any number of aggressors to protect himself alone. private defence overlaps the doctrine of necessity. Unlike necessity, the private defence does not.
What is the extent of private defence against body in a situation which is not mentioned in the seven categories of Section 100? If there is any situation which is not mentioned in Section 100, the person cannot exercise his right of private defence against the body to cause death of any person. He can only exercise the right to the extent of causing any other harm or injury except death. In the case of Mahinder Pal, when small mischief was committed in the factory by the workers, the owner was not justified in doing his act when he shot dead one of the workers.
When does the right of private defence Commences, and ends?
Section 102 deals with the commencement and continuance of right of private defence with respect to body only. The person exercising the right must consider whether the threat to his person is real and immediate or not.
Commencement: A person can exercise the right of private defence as soon as he reasonably apprehends the danger to the body. This may be sensed when any person attempts to commit an offence or threatens that he will commit an offence. The person is not expected to wait till the offence is committed. Even if the person threatens to commit the offence, it is sufficient for the other person to exercise his right of private defence. The extent to which the right can be exercised does not depends upon the actual danger but on the reasonable apprehension of danger. The right to private defence gives right to defend one self from any reasonable apprehension of danger. The threat however must give rise to present and imminent danger and not remote or distant danger.
Continuance: As long as the fear of danger continues, the person is free to use his right of private defence.
It was held in the case of Sitaram v. Emperor, that a person exercising the right of private defence is entitled to secure his victory as long as the contest is continued. He is not obliged to retreat but may continue to defend till he finds himself out of danger.
End: When it can be reasonably seen that the danger no longer exists, the person’s right of private defence ends. He has no such right after that. If in case he commits any hurt to other after the fear ends, he will not be immune and will be held liable for his act. For example, Mr. A threatened Mr. B that he will kill him and moved with a sword towards Mr. B. Meanwhile, Mr. X, father of Mr. A, came in between and stopped Mr. A. Mr. A followed his order and started going back to his home. Now, the apprehension of threat on Mr. B has ended. If Mr. B attacks Mr. A now, he will not be given shelter under private defence and will be held liable for his acts.
When can a person exercise his right of private defence against Property to cause death?
Section 103 postulates that in certain cases, when you have threat to a property, be it yours or someone else’s or movable or immovable property, you can exercise the right of private defence to cause death of a person. In the case of Jagan Ram v. State the court said that whenever any offence is committed on a property, it is immaterial that the accused is the owner of the property or not. However, they cannot exercise this right to defend the property of other person if that person has entered into a free fight. This act justifies the mentioned acts when they causes reasonable apprehension of death or grievous harm. If a person is not in possession of the property, he cannot claim any right of private defence regarding such property. Right to dispossess or throw out a trespasser is not available to the true owner if the trespasser is in the lawful possession of the property at that time. If a person is appointed to guard the property of his employer, he is protected under Section 103 if he commits homicide while defending the property from aggressors. Similarly, a person who is appointed to guard a public property enjoys the same right
If there is any other threat to the property which is not mentioned above, the person cannot exercise his right of private defence to cause death to any person. However, the person can exercise his right of private defence to cause any harm other than death to the person who is doing wrong to his property. (Section 104)
Also, in cases where theft, mischief or trespass if it does not cause reasonable apprehension of death then one cannot cause death of a person
Under this section, what is important to be noticed is that was there a reasonable apprehension of danger to the property or not. Once there is such apprehension of danger, the right is available to the accused irrespective of the fact that the offence or the attempt for the offence has actually committed or not.
Commencement: A person can exercise the right of private defence as soon as he reasonably senses the danger to the property. For commencing the right of private defence, reasonable apprehension is important and not the fact that actual crime has been committed or not.
The police assistance is not obtained, or The property is not recovered If the thief has withdrawn or the property has been recovered, the person has can no longer exercise the right of private defence.
Robbery: A person can exercise his right of private defence as long as: The offender causes or attempts to cause death, hurt or wrongful restraint to any person, or The fear of death, hurt or wrongful restraint continuous
Criminal Trespass and Mischief: A person can exercise the right until the aggressors leave the field. If the trespassers use violence against the persons resisting the criminal trespass, any hurt made as an exercise of private defence over the trespassers is justified.
House Breaking by night: A person can exercise the right till the offence of housebreaking continues. Ends: As soon as the above conditions stops operating, a person’s right of private defence cannot be exercised. But the right of private defence against property is not extended to intellectual property such as patents, copyrights etc.
- It is not a right to take revenge. It is a right to defend.
- It can be exercised only when the person is unable to get immediate aid from the State machinery
- This right can be extended to protect the body and property of third party as well.
- It should not be an act of self-creation but an act of necessity which causes an impending danger and should not exceed than what is legitimate and necessary.
One may cause such injury as may be necessary to tackle with that danger or threat. Where the person is exercising the right of self-defence, it is not possible to calculate the amount of force which he needs to exercise. The person exercising the right does not need to prove the existence of a right of private defence beyond reasonable doubt. The right of private defence is recognized under the law but within certain reasonable limits. Even if the accused does not plead self-defence, it is open to the Court to consider that such circumstances might exist. The fight of self-defence commences as soon as reasonable apprehension arises, and continues till such apprehension lasts
There is nothing which lays down in absolute terms and in all situations that the injuries incurred by the accused have to be explained. Once the reasonable apprehension disappears, the right of self-defence is not available anymore. The plea of reasonable apprehension is a question of fact which the court finds out through certain facts and circumstances. It is unrealistic to expect a person under assault to step by step modulate his defence.
Right of private defence against reasonable fear of death in case where there is a risk of harm to innocent person (Section 106)
Where a person can reasonably foresee that there is fear to his life but if he exercises the right of private defence, any innocent person may get hurt; he has the right to exercise such right. In case he hurts an innocent person while exercising his right of private defence; he will not be held liable for this act.
What are the Exceptions to the rule of private defence? (Section 99) :
- There was no fear of death or grievous hurt
- The act was done or attempted to be done by a public servant or under the direction of public servant
- The public servant was acting in good faith
- The public servant was under colour of his office
- It does not matter if the act or direction was justified by law or not.
Section 99 specifically says that there is no right of private defence against an act which does not cause reasonable apprehension of death or grievous hurt, if done or attempted to be done on the direction of a public servant acting under good faith under the colour of his office. The protection extents to acts which are not even justified by law .
However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent.
When a person has time to recourse:
If a person has reasonable time to have recourse to the protection of the public authorities; he has no right to use its private defence. For example, if a person is threatened that he will be killed after three days, he has sufficient time to inform the police. If in case he waits for the person who threatened him and shot him dead. He cannot say that he was using his right of private defence.
In the case of Jai Dev v. state of Punjab, the Supreme court said that “In a civilized society, the state is assumed to take care of person and properties of Individual. This, however, does not mean that if a person suddenly faces an assault, he must run away and protect himself. He is entitled to resist the attack and defend himself.”
The law of private defence itself states that there is no right of private defence available unless the situation was so urgent that there was no time to have recourse to the protection of public authorities. The urgency of the situation must naturally depend upon several facts and circumstances. These circumstances may include:
- Immediate danger to person or property that if it is not immediately protected, would be lost by the time the protection from public servants is obtained.
- Reasonable apprehension of the danger to person or property arises out of committed, attempted or threatened crime. The act was going to affect person and property and justifies the particular injury inflicted.
- When the act of private defence extends to inflicting of more harm than it is necessary to inflict for the purpose of defence
- The right of private defence is restricted to not inflicting more harm than necessary for the purpose of defence. To determine the amount of force which was necessary to be inflicted, the facts and circumstances are needed to be considered. There is no protection available in case the harm is inflicted unnecessarily and is much extended than what was reasonable.
There have been instances where the force inflicted was more than necessary. Some of them are:
- A person killed old woman found stealing at night.
- A person caught a thief at night and deliberately killed him with a pick-axe.
- A thief was caught committing housebreaking and was subjected to gross maltreatment
- The right of private defence arises when an aggressor has struck or a reasonable apprehension of a grievous hurt arises depending upon the facts of each case. But such a right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence
If the person who uses his right of private defence over a public servant did not know or had no reason to believe that he is a public servant; he can exercise his right. For example, Mr. X saw Mr. A was followed by an unknown person with a gun. Mr. X hit that unknown person in order to save Mr. A. Later, it is revealed that the unknown person was Mr. Z, a police officer. Since Mr. Z was not in his uniform, Mr. X did not know and has no reason to believe that he is a public servant. Therefore, Mr. X’s right of private defence was justified.
If the person who uses his right of private defence against a person who was acting under the direction of public servant; his right of private defence cannot be taken if: He did not know that the person is acting under the direction of a public servant He has no reason to believe that the person is acting under the direction of a public servant. The person does not state that he is working under such authority. If the person has the authority in writing and he did not produce such authority, if demanded
- Bonafide Act: Even if the act of a public servant is not justified by law, the right of private defence cannot be exercised if he acts bonafide and under the colour of his office. But in case the officer is acting unlawfully, he cannot be said to be acting in discharge of his duties.
- Knowledge of identity of public officer and his authority: In order to establish this condition, it is necessary that the accused must be sure that the person is a public officer.
In case of Emperor v. Abdul Hamim, policemen raided to the house of accused at night. The accused was sleeping and was awakened by some noise and rushed out of the room. The policemen fired at him and he fired back not knowing who they were. It was held that the accused was under a mistake of fact with regards to the identity of the officers. This gave him the right to private defence to save his body and property from trespassers.
Also Read: Essential Elements of Crime