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Private Defence (IPC)

Updated: May 12


Private Defence (IPC)
Private Defence (IPC)

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Right Of Private Defence - Rationale/ Justification and Basis


The right of self-defence is rooted in the principle that necessity overrides legal constraints. Bentham, in his work 'Principle of Penal Laws,' emphasised its indispensability, stating that individual vigilance surpasses that of the authorities. 



Self-defence is the inherent right to safeguard one's person and property from unlawful aggression. It reflects the fundamental duty of individuals to protect themselves and others, even if it means resorting to taking the law into their own hands.



"Self-help" is a cornerstone of criminal law, recognizing that citizens should not be expected to be passive in the face of danger. This right is not a privilege but a natural entitlement, arising from specific circumstances rather than being bestowed as a favour. 



Sec. 96. Things done in Private Defence


Nothing is an offence which is done in the exercise of the right of private defence.” 


   Section 96 serves as a foundational provision, establishing the general principle of the right of private defence. It operates as a legal fiction, stipulating that any act which would otherwise constitute an offence is not deemed as such if done in self-defence.



This provision has broad implications, effectively exempting individuals from criminal liability for acts committed in self-defence. However, it's crucial to note that the right of private defence is circumscribed to the realm of self-defence. Allowing unrestricted killing under the guise of self-defence would amount to seeking personal retribution rather than genuine self-protection.

 
 

When the Right of Defence Not Available


The right of private defence is not without limits. It cannot be invoked in the following scenarios:


  • Aggressors cannot claim the right to private defence since they themselves pose a threat to their own lives by initiating the aggression.


  • Private defence cannot be used against another act of private defence. The right of private defence is only applicable against acts that are considered offences under the law.


  • In cases where two parties are engaged in a mutual fight without determining the initial aggressor, neither party is entitled to claim the right of private defence. Each individual is accountable for their own actions in such situations. 



Burden of Proof 


In accordance with Section 105 of the Indian Evidence Act, 1872, the burden of proving the exception rests on the accused, who benefits from it. Even if the accused does not explicitly plead self-defence, the court can consider such a plea if it arises from the evidence presented.



In Mohd. Ramzani v State of Delhi (1980 Supp. SCC 215), the Supreme Court stated that the burden on the accused to establish self-defence is not as heavy as the prosecution's burden to prove every element of the offence beyond reasonable doubt.



Similarly, in Salim Zia v State of UP. (AIR 1979 SC 391), the Apex Court noted that while the prosecution must prove its case beyond reasonable doubt, the accused does not need to establish self-defence definitively.



The accused may discharge their burden by demonstrating a preponderance of probabilities, either through cross-examination of prosecution witnesses or by presenting defence evidence.



Private Defence Of Body  [Secs. 96-99,100-102 & 106]



Sec. 97, Right of private defence of the body


“Every person has a right (subject to restrictions in Sec. 99) to defend his own body or that of any other person against any offence affecting the human body.” 


Section 97(1) grants the right of private defence solely against an unlawful or wrongful act that constitutes an 'offence' under the Penal Code, specifically those classified as 'Offences affecting the human body' (Sections 299-377).



This right does not extend to physical actions that may be undesirable but are not punishable under the Code. It's important to note that an offence affecting the human body under a special or local law may also trigger the right of private defence, as per Section 40(2) of the IPC.



Sec. 98. Right of private defence against the act of a person of unsound mind, etc.


Every person has the right of private defence of the body/property against an act, which would otherwise be a certain offence, but is not that offence by reason of the doer being of unsound mind, a minor, an intoxicated person or a person acting under misconception of fact.” 


Section 98 extends the scope of the right of private defence beyond 'offences' to encompass certain 'acts.' This means that the right applies even when the threatened act would not technically constitute an offence due to exceptions outlined in the IPC, such as the actions of children under 7 or those of unsound mind.



Essentially, the right of private defence is applicable against individuals who are legally exempt from criminal liability for their actions. This section emphasises that the capacity or mental state of the person posing the threat is irrelevant for the exercise of this right. It underscores that the right of self-defence is inherent to human nature, applicable against all attackers, whether intentional or innocent.



Illustrations

(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.



(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception..

 
 

Sec. 99. Acts against which there is no right of private defence (Limitations on Right of Private Defence


Section 99 of the IPC imposes four restrictions on the right of private defence:


  • No right of private defence against a public servant acting in good faith under the colour of his office, unless the act reasonably causes apprehension of death or grievous hurt.


  • Similarly, no right of private defence against an act directed by a public servant, even if the direction is not strictly justifiable by law.


  • No right of defence when there is time to seek protection from public authorities.


  • The right of private defence does not extend to inflicting more harm than necessary for defence.


Explanations clarify that the right of defence against a public servant is retained unless the defender knows or has reason to believe the attacker's status or direction.



Public Servant doing his Duties


Section 99 of the IPC aims to safeguard public servants and limit resistance against them, presuming their actions to be lawful. The right of private defence can be exercised against a public servant under three conditions: when the act reasonably causes apprehension of death/grievous hurt, when the public servant acts in bad faith, and when the defender is unaware of the attacker's status.



For instance, in Dhara Singh v Emperor, the accused fired at police entering his house at night, unaware of their identity, and was deemed to have acted in self-defence.



However, the right of private defence is not applicable if the public servant acts lawfully, as seen in Kanwar Singh v Delhi Administration, where the accused injured raiding party members during a lawful seizure of cattle.



Additionally, the right of private defence is not applicable in "stage-managed" scenarios, where one orchestrates events to achieve a desired outcome, as clarified in situations like Mithu Khan v State of Rajasthan.



Time for Recourse to the Public Authorities


Section 99 of the IPC underscores that resorting to public authorities for protection nullifies the right of private defence. However, this doesn't mandate fleeing in the face of danger.



In Narsang Pathabhai (1890) 14 Bom 441, the accused, upon learning of impending aggression, defended themselves without seeking help, thus justifying their actions.



Conversely, in Gurudatta Main State of UP (AIR 1965 SC 257), the accused, aware of an impending dispute, failed to seek police protection and attacked the complainant, leading to a denial of their right of private defence. The court emphasised that timely recourse to public authorities could have prevented the violence. 



Necessary and Proportionate Force


Section 99 emphasises that the right of private defence should only be utilised for protection, not retaliation. It must be proportionate to the force used by the attacker and the imminent danger faced.



While it's challenging to precisely gauge the necessary force during an attack, the law considers the circumstances and the instinct for self-preservation. The court acknowledges the difficulty of assessing actions in the heat of the moment and doesn't expect individuals to calmly weigh their responses.



Sec. 100. When the right of private defence extends to causing death


The right of private defence of the body extends to seven circumstances, including instances where there is reasonable apprehension of death or grievous hurt, or assault with the intention of committing certain offenses like rape or kidnapping.



The law emphasises four cardinal conditions that must exist before taking a life in self-defence: freedom from fault, imminent peril, lack of safe retreat, and necessity.



Section 99 ensures that the right of private defence is not misused for revenge, emphasising its defensive nature. It must only be used for protection and must not exceed the bounds of defence and prevention.



The law considers the circumstances of each case to determine the extent of force permissible, with due allowance made for actions taken in the heat of the moment. Judgement in such situations should consider the subjective viewpoint of the accused confronting the threat, rather than adopting detached objectivity.

 
 

Sec. 101. When such right extends to causing any harm other than death

 

According to Section 101, in situations outside of those specified in Section 100, the individual exercising the right (subject to the restrictions outlined in Section 99) may inflict harm other than death.



Section 101 serves as a complement to Section 100, clarifying that when the violation of person or liberty is not as severe as the offences listed in Section 100, it can still be resisted with any necessary degree of violence that falls short of causing death.



For instance, if there is a reasonable fear of "simple hurt," only harm may be inflicted, not death. However, if there is a reasonable fear of "grievous hurt," either harm or death may be caused, as this falls under the purview of Section 100.



It's important to note that in both Sections 100 and 101, the defender is bound by the limitations outlined in Section 99. Furthermore, if death occurs in the exercise of the right of private defence, the defender must prove that the defended offence falls within the seven categories specified in Section 100 and that they acted within the limitations of Section 99.



Conversely, if death is not caused (in a situation covered by Section 101), the defender only needs to prove that they acted within the limitations of Section 99.



Sec. 102. Commencement and continuance of the right of private defence (Duration of the right to defend body)


Section 102 reads: “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 t continues so long as such apprehension of danger to the body continues.”



    Section 102 makes it clear that the right of private defence cannot be exercised until there is a reasonable apprehension of danger, regardless of whether the offence has actually been committed. This means that the right comes into play based on the reasonable expectation of harm, not necessarily the occurrence of harm.



An apprehension of danger can arise from an attempt or threat to commit an offence. However, this apprehension must be based on reasonable grounds; mere idle threats or the apprehension of a timid mind will not justify the exercise of this right. The danger must be real, imminent, and potent, not illusory. The determination of whether the apprehension was genuine or not depends on the factual circumstances of the assault.



Sec. 106. Right of private defence against deadly assault when there is risk of harm to innocent person


Section 106 reads: “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 effectively exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.



      Thus, ifA is attacked by a mob which attempts to murder him and he cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob, A commits no offence if by so firing he harms the children {Illustration, Sec. 106)



 

Ten Expediencies: Right of Private Defence


The doctrine of the 'right of private defence' is grounded on several key principles:


  • No need to wait for State aid: A person facing grave danger to their life need not wait for State aid, although seeking assistance from authorities is advisable when available promptly.


  • Right is preventive: It is a protective measure and not intended for punishment. It should only be exercised in response to imminent peril, not as a means of retaliation.


  • Right is not retributive: It cannot be used for personal satisfaction or to fulfil malicious desires. It should not be used to justify acts of aggression.


  • Right to be exercised when real and immediate threat: The right must be exercised when there is a genuine and immediate threat, not based on imaginary fears or probabilities.


  • Test of present and imminent danger: The right is only applicable when there is a present and imminent danger, not a remote or distant threat.


  • Commencement and continuance of right: The right starts when there is a reasonable apprehension of danger, even if the offence has not yet been committed, and continues as long as the danger persists.


  • Test of proportionality: The force used in self-defence must be proportionate to the threat posed, although exact calculation of proportionality may be challenging in the heat of the moment.


  • When the right ends: The right of defence ceases when the necessity for it ends. Pursuing fleeing attackers or seeking revenge is not justified.


  • Running away not contemplated by the right: The law does not require a person to retreat if they can avoid injury by doing so.


  • Golden scales: The law does not expect individuals in such situations to meticulously weigh the options in a perfectly rational manner.



Leading Case Laws


DEO NARAIN v STATE OF U.P. (AIR 1973 SC 473): In this case, the accused was defending his possession of land against a group intending to forcibly dispossess him.


A clash ensued, resulting in the death of one member of the opposing party. Despite the accused receiving head injuries, he fatally wounded the deceased with a spear.


The High Court initially denied his right to self-defence, citing the severity of his attack compared to his injuries. However, the Supreme Court disagreed.


The Supreme Court emphasised that the right of private defence begins when there is a reasonable apprehension of danger, even if the offence has not yet occurred. It stressed that individuals facing grave aggression cannot be expected to calmly calculate their response.



The right of self-defence is preventive, not punitive, and applies against apprehended unlawful aggression, not for punishing the aggressor.


In this case, the accused reasonably perceived imminent danger to himself and his companions due to the opposing party's forcible obstruction.


The Supreme Court ruled that the accused's use of force was justified in defending against the apparent danger.


It rejected the notion that a lesser form of defence should have been employed considering the severity of the attack faced. Thus, the Court concluded that the accused did not exceed his right of private defence.


KISHAN v STATE of M.P. (AIR 1974 SC 244)

In this case, an altercation between the accused and Bucha escalated when the accused returned with friends and attacked Bucha.


Bucha defended himself using a kuhtai, causing one of the accused's friends to become unconscious. Subsequently, the accused snatched the kuhtai and fatally struck Bucha.



Initially, the lower court deemed the accused's actions as self-defence, considering Bucha the aggressor. However, the High Court disagreed, stating that the accused and his friends initiated the confrontation.



The Supreme Court upheld the High Court's decision, emphasizing that the right of private defence cannot be invoked by those who initiate aggression. The accused's actions were deemed aggressive, and Bucha was justified in defending himself.



The Apex Court clarified that the right of private defence applies to those who are attacked, not those who initiate violence. Additionally, it stated that private defence cannot be used against another individual's act of self-defence.



STATE OF UP .v RAM SWARUP ["Melon Case”]  (AIR 1974 SC 1570): In this case, Ganga Ram and his sons instigated a confrontation in the market after a dispute over melons.


They returned armed, provoking a clash during which Ram Swarup fatally shot the deceased. The Supreme Court clarified:



(a) Right of Self-defence Not for Retribution: The right of self-defence cannot be used to justify aggression. Ganga Ram and his sons initiated the conflict and cannot claim self-defence.



(b) Right of Private Defence Ends with Necessity: Those at fault must attempt to retreat unless the severity of the attack renders retreat impossible. Ram Swarup, being the aggressor, had no right to use excessive force.



(c) Burden of Proof: The burden of proving the circumstances of self-defence falls on the accused. Ram Swarup's actions were deliberate, and his claim of accidental shooting was unfounded.


Verdict: Ram Swarup had no right of private defence; his actions were deliberate, not accidental.



JAMES MARTIN v STATE OF KERALA  [(2004) 2 SCC 203]: In this Kerala case, during a Bharat Bandh, the accused's flour mill was forcefully targeted. Despite the accused's resistance, a skirmish ensued, resulting in fatalities. The Supreme Court highlighted:



(a) Nature of Injuries: The presence of injuries on the accused doesn't automatically prove self-defence. The defence must show the injuries support their version of events.



(b) Circumstances Considered: Factors like imminent threat, injuries sustained, and time to seek help are crucial in determining self-defence. Microscopic inquiry is avoided, considering the urgency and confusion during such incidents.



(c) Purpose of Private Defence: Self-defence serves a social purpose but shouldn't be used for aggression. The burden of proof lies with the accused, who can establish their plea from prosecution evidence.



Verdict: The accused's actions were deemed within reasonable limits of self-defence, given the imminent threat and violence faced during the Bandh.

 
 

PRIVATE DEFENCE OF PROPERTY [SECS. 96-99, 103-105 & 106]


Acts against which right of defence of property can be exercised


Every person has the right to defend the property (whether movable or immovable) of himself or of any other person:- 


  •  Against theft, robbery, mischief or criminal trespass, or any act which is an attempt to commit theft, robbery, mischief or criminal trespass [Sec. 97, Clause Second]', and  

  • Against the act of a lunatic, a minor, or an intoxicated person or a person acting under a misconception of fact [Sec. 98]. 



It's crucial to understand that the right of private defence applies primarily to four property-related offences: Theft, Robbery, Mischief, and Criminal Trespass. However, it extends to offences stemming from these categories as well.



Excluded offences like criminal misappropriation, breach of trust, cheating, extortion, and others don't typically involve immediate violence. Yet, if an excluded offence escalates to an imminent threat, the right of private defence can be invoked.



Settled Peaceful Possession of Property


To claim the right of private defence over property, a person must have actual physical possession, regardless of the legal title. This "de facto" possession is paramount in criminal courts' eyes as it pertains to maintaining peace.



In some instances, even a trespasser with settled possession can defend against an attack by the true owner.


However, the true owner retains the right to pursue legal remedies. In Puran Singh v State of Punjab (AIR 1975 SC 1674), the Supreme Court emphasised that for a trespasser to exercise this right, they must possess the property openly and for a sufficient duration, known to the owner.


The process of dispossession must be complete, as evidenced by actions like crop cultivation.



It's established that a mere attempt at possession or unawareness of the true owner doesn't grant the trespasser this right. Only when the true owner acknowledges the trespasser's possession but remains silent does the passage of time become relevant.



In another case, Lakshmi Tiwari v State of Bihar (AIR 1972 SC 1058), where the accused cultivated land as a manager/agent, they couldn't claim the right of private defence as they lacked independent possession against the true owner.



Acts against which there is no right of private defence of property.


Sec. 99 lays down the limitations to the right of private defence of property :-


  • There is no right of private defence of property against an act which does not reasonably cause the apprehension of death/grievous hurt, if done by (or by the direction of) a public servant acting in good faith under colour of his office.


  • There is also no right of private defence of property in cases in which there is time to have recourse to the protection of the public authorities. Further, the right of private defence in no case extends to the inflicting of more than it is necessary to inflict for the purpose of defence. 



When the right extends to the causing of death, etc. 


Sec. 103 enumerates the cases in which the right extends to justifiably causing the death of the wrong-doer (subject to the restrictions mentioned in Sec. 99), viz.  


  • Robbery,


  • House-breaking by night,


  • Mischief by fire to any building, tent, or vessel used as human dwelling or as a place for the custody of property,


  • Theft, mischief, or house-trespass under such circumstances may reasonably cause an apprehension that death/grievous hurt will be the consequence, if such right of private defence is not exercised. 

 

   

Right when commences and how long it continues (Sec. 105)


The right commences when a reasonable apprehension of danger to the property commences. The right continues:-


  • against theft, till the offender has affected his retreat with the property; or the assistance of the public authorities is obtained; or the property has been recovered.


  • against robbery, as long as the offender causes (or attempts to cause) to any person death or hurt or wrongful restraint; or the fear of instant death/hurt/personal restraint continues. 


  • against criminal trespass or mischief, so long as the offender continues in the commission of such offence. 


  • against house-breaking by night, as long as the house trespass continues. 


Thus, the right of private defence of the property commences and continues as long as the danger lasts. The extent to which the exercise of the right will be justified will depend, not on the actual danger, but on whether there was reasonable apprehension of such danger. 



Termination of Right of Private Defence of Property


The right of private defence regarding theft continues until the thief retreats with the property, or public authorities are sought, or the property is recovered.



There's debate on whether the right ends with the thief's escape, with one view suggesting it may be revived if the stolen property is found later. The second view holds that once the thief retreats with the property, the right of defence ends, but until then, the right continues.



Regarding robbery, the right of private defence continues as long as there is fear of death, hurt, or restraint. For criminal trespass or mischief, the right continues as long as the offence is ongoing. For house-breaking by night, the right continues only during the trespass.



In a case, it was held that killing a thief in the open after house-trespass has ceased doesn't justify claiming the right of private defence. Similarly, using force against a house-breaker is justified only while they are on the premises.


JUDICIAL VIEW ON PRIVATE DEFENCE


The framers of the Penal Code acknowledged the challenge of interpreting private defence provisions, leaving room for flexibility to ensure fairness. However, local courts have often interpreted these provisions restrictively, deviating from the framers' intent.



For instance, the concept of "reasonable apprehension" under Secs. 100/102 has been narrowly construed, neglecting its inherent ambiguity. This stands in contrast to current English law, which assesses danger based solely on the accused's perception (subjective test).



Determining reasonable apprehension requires an honest belief in danger, reasonably warranted by the aggressor's conduct and surrounding circumstances. Three tests—objective, subjective, and expanded objective—help ascertain this belief.



While the objective test considers how a reasonable person would react, the subjective test focuses on individual mental state. The expanded objective test combines both, assessing whether the individual acted reasonably.



Misuse of the right of private defence is a significant concern, complicating courts' task of discerning good faith from bad intentions. Identifying whether the right was exercised legitimately poses a challenge for the legal system.

 
 

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