Right of Private Defence
Right of Private Defence | Overview Introduction Basis Of The Right Of Private Defence Right of Private Defence is Essentially Defensive and not a Punitive Right Right Of Private Defence Not Available Against Lawful Acts Limits Of The Right Of Private Defence When The Right Of Private Defence Of The Body Extends To Causing Death When The Right… Read More »
Right of Private Defence | Overview Introduction Basis Of The Right Of Private Defence Right of Private Defence is Essentially Defensive and not a Punitive Right Right Of Private Defence Not Available Against Lawful Acts Limits Of The Right Of Private Defence When The Right Of Private Defence Of The Body Extends To Causing Death When The Right Of Private Defence Of Body Does Not Extend To Causing The Right of Private defence is justifiable and ultimately exempt an individual from...
Right of Private Defence | Overview
- Introduction
- Basis Of The Right Of Private Defence
- Right of Private Defence is Essentially Defensive and not a Punitive Right
- Right Of Private Defence Not Available Against Lawful Acts
- Limits Of The Right Of Private Defence
- When The Right Of Private Defence Of The Body Extends To Causing Death
- When The Right Of Private Defence Of Body Does Not Extend To Causing
The Right of Private defence is justifiable and ultimately exempt an individual from criminal liability. However, this right of private defence is subject to certain limitations. Sections 96 to 106 of the Indian Penal Code, 1860 deal with the right of private defence.
Introduction
Every penal rule is subject to several limitations and no offence can be absolute without exemptions. According to Blackstone, “general exceptions are defences that can be regarded as those circumstances where the prosecution has been unable to prove all the requirements of liability beyond a reasonable doubt.”[1]
The ‘General Exceptions’ under IPC, 1860 are categorised into two groups:
- Excusable and
- Justifiable
The Right of Private defence is justifiable and ultimately exempt an individual from criminal liability. However, this right of private defence is subject to certain limitations. Sections 96 to 106 of the Indian Penal Code, 1860 deal with the right of private defence.
I. Basis Of The Right Of Private Defence
A state has an obligation to protect its subjects’ life, limb, and property. But no state, however resourceful and coordinated it may be, will be in a position either to depute each individual to a policeman for the protection of his body and property, or to dog the actions of every person who unlawfully poses a threat to the body and property of others.
At all times and in all situations, a state can never extend its assistance to everyone. In such a case, a person will be forced to resort to all possible means at his disposal to defend himself and his property in pursuit of his fundamental instinct of self-preservation.
Many modern civilized societies, like India, sanction any person’s right to resist violence or repel violence through violence within certain reasonable limits and with some riders, in periods when state aid cannot be obtained. Private defence privileges are founded on the fundamental concept that protecting oneself is a man’s primary duty. Self-preservation is every human being’s primary instinct.
Private defence privileges serve a social purpose. Not only does it limit bad characters, it also allows a free citizen to have the right spirit. A man, as a general rule, is not expected to run away for protection when he is faced with severe and imminent danger to his person or property as a result of unlawful provocation, nor is he required to redress the wrongs committed against him or punish the wrongdoer for the execution of the offenses by force.
Section 96 in The Indian Penal Code
Things done in private defence – Nothing is an offence which is done in the exercise of the right of private defence.
Section 97 in The Indian Penal Code
Right of private defence of the body and of property.—Every person has a right, subject to the restrictions contained in section 99, to defend—
(Firstly) — 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.”
II. Right of Private Defence is Essentially Defensive and not a Punitive Right
The very term ‘nothing is a crime committed in the exercise of the private defence right’ found in section 96 suggests that the right to privacy is basically a security right limited to the IPC, and is accessible only where it is clearly justified by the circumstances. The procedure is performed only to repel criminal violence and not to punish the aggressor for the crime that he has committed. It’s not a right or retaliation of violence. This can’t be a vindictive or malicious activity.
A right to defend, however, does not include a right to launch an offensive, particularly when there is no longer a need to defend itself. An individual is not entitled to use the violence that is disproportionate to the injury to be avoided or arrested fairly.
He commits an offence as soon as a defender reaches it and is thus unentitled to the right to private defence.
In Ram Ratan v. State of Bihar[2], the plaintiff’s cattle escaped into the field and began to graze. The accused took the cattle and carried them to the pound. When the complainant party came to know about the cattle’s capture, it came with good numbers, armed in various ways to rescue the cattle.
The Supreme Court held that since the party of the petitioner had come armed with sharp-edged guns and lathis to rescue the animals from the accused party, the accused party could have apprehended that they were not inclined peacefully and used force against them to rescue the bovine animals and that the force likely to be used could cause serious harm. In view of this, the court held that no crime was committed by the accused party in causing injury to persons in the party of the plaintiff and even causing death to one of them. All of the accused were acquitted.
In Jai Dev v. State of Punjab [3], the guilty party bought a piece of land in a neighbouring village. As they were outsiders of the village, they were treated as strangers by the other villagers. When the accused, who were armed, plugged the field into the disputed land, the villagers came armed in large numbers to take possession of the field, who could not tolerate that outsiders would take possession of the land. In self-defence of their land, the accused party caused harm and shot one person named Amin Lal dead.
The villagers who had come to the field ran away soon afterwards and there was no longer any reason for using any force against the running villagers. The moment the land was cleared of trespassers, there ceased to be the right to private protection. Nevertheless, two of the fleeing villagers were shot dead by the accused. While in the killing of Amin Lal the right of private protection was valid, the Supreme Court held that killing the fleeing villagers who were already some distance away from the field was not possible. The accused were sentenced to life imprisonment as they were convicted for murder.
Free Fight
A free fight is when two individuals or groups are competing against each other using unlawful force. Both sides are fighting from the beginning. They come armed to assess their strength and resolve a conflict by intimidation. A pitched battle is going on.
A pre-planned struggle between two parties may lead to an assumption that neither party’s goal is to defend itself, but a pre-planned struggle is not always needed to turn a struggle into a’ free struggle’. In such a case of free struggle, all sides are aggressors, and none of them has the right to claim private defence rights.
III. Right Of Private Defence Not Available Against Lawful Acts
The right of private defence arises only in cases where the accused is subjected to an unlawful aggression. To repel such unlawful violent action, it is necessary to exercise the right to private defence.
In Kanwar Singh v. Delhi Administration[4], a raiding party with jurisdiction under the Delhi Municipal Corporation Act confiscated the stray cattle of the accused. The accused opposed cattle capture and the raiding party was wounded. Because the raiding party carried out a legitimate act, the capture of the cattle was justified in fact, the accused had no right of private defence. He was sentenced accordingly.
Acts Of Intoxicated Persons And Persons With Unsound Mind
“Section 98 in The Indian Penal Code
Right of private defence against the act of a person of unsound mind, etc – 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 were that offence.”
Lunatics, drunken people’s actions are excusable offences. Private defence protections are only valid against the commission of offenses. Section 98 IPC, in particular, specifies that the right of private defence applies to actions that would be crimes, but because they are acts of children, persons of unsound mind, acts of drunken people, and acts committed under misconception. This guarantees that a person does not forfeit his right to private protection simply because the other party is legally incapable of committing an offense and is shielded by legal abnormality.
If a drunk man breaks the law and threatens either the individual or other people’s property, every member of the public has the right to exercise the right to private defence against such an assault, even the drunken man himself has the right to the protection of the law.
IV. Limits Of The Right Of Private Defence
Section 99 in The Indian Penal Code– Acts against which there is no right of private defence.
Section 99 stipulates the actions that do not constitute the right to private defence. This restricts the exercise of the right to private defence. The section stipulates that there is no right of private protection against an act committed or attempted by a public servant or an act committed or attempted by a public servant, unless it gives rise to a reasonable apprehension of death or grievous injury, as long as it functions lawfully as a public servant.
The right of private protection, according to paragraph 3 of section 99, is not available when there is time to have recourse to state authorities or to request assistance from the state. The harm caused by the exercise of the right of private defence should in no case exceed the amount of harm that may be appropriate for the defence intent.
The right to private protection of a person or property must, therefore, be exercised under the following conditions:
- if a public servant does not cause a reasonable apprehension of death or grievous harm to the person or damage to the property,
- if there is insufficient time for recourse to public authorities, and
- it does not cause more harm than is required to repel the attack.
(1) Acts of Public Servants
The section provides that no private defence privilege is available against acts of a public servant or conduct carried out under the direction of a public servant if carried out in good faith under the colour of his office, although such action or direction may not be strictly justified by statute.
Nevertheless, in situations where the actions of the public servant cause a reasonable apprehension of death or grievous harm to the parties concerned, this security granted to lawful acts of public servants or individuals acting under their control must apply.
The section shall only apply if the person, acting, is aware of or has reason to believe that the perpetrator is a public servant or acts under the direction of a public servant. If the person acts under a public servant’s order, then that person should state the authority under which he acts or, if the authority is in writing, should produce the same if asked for, to receive the benefit of this section.
(2) Time to have Recourse to Authorities
Section 99 also states that in situations where there is time to have access to the protection of public authorities, there is no right to private defence. The limitation is based on the fact that a person is guaranteed the right of private protection to repel an imminent danger to his body and property when a person is unable to receive state assistance. Clearly, when he has ample opportunity to have access to state authorities, the need for self-help disappears. A delinquent must contact public authorities in such a case instead of taking the law into his own hands.
The time element of section 99, however, does not depend on the severity of the alleged offence, but on the reasonable apprehension of the accused that the crime would be completed before the intervention of the public authorities.
(3) Right does not Extend to Causing more Harm than Necessary
Section 99 imposes an unnecessary restriction on the exercise of private defence rights. This stipulates that, under no conditions, the right to private protection applies to causing more damage than is required for defence purposes.
In Patil Hari Meghji v. State of Gujarat[5], the accused continued to attack the deceased, even after he had fallen down and rendered harmless, it was held that the accused could not avail the benefit of the right of private defence.
In Mohinder Pal Jolly v. State of Punjab[6], there was a conflict between workers and management. The men hurled brickbats at the factory. The factory owner came out and shot one worker with a revolver killing him. The Supreme Court ruled that when murdering the worker, the owner violated his right of self-defence.
V. When The Right Of Private Defence Of The Body Extends To Causing Death
Section 100 in The Indian Penal Code- When the right of private defence of the body extends to causing death.
In certain cases, the body’s right to private protection stretches to the degree that it even causes the aggressor’s death. This is recognized by IPC section 100. This right is subject to the restrictions imposed under section 99, it must always be borne in mind. Therefore, pursuant to these conditions, the right to private protection applies to the aggressor’s death, subject to the additional conditions specified in section 100.
As per section 100, the right of private protection extends to causing the assailant’s death if any of the six conditions stipulated occur in the assailant’s commission of the offense. In other terms, it guarantees that the body’s right to private protection applies to the cause of the actual or potential assailant’s voluntary death if he induces reasonable and immediate fear of death or serious harm in the accused’s mind through either of the defined assaults.
The assault types listed in section 100 are:
- assault to kill or inflict grievous harm;
- assault on rape to fulfil unnatural lust;
- assault on kidnapping or abduction; and
- assault on wrongful imprisonment.
When death is caused by the exercise of the body’s right of private protection, the defender must show that: (a) the crime defended against was one of the six categories referred to in s 100, and (b) he behaved within the limits set out in s 99.
VI. When The Right Of Private Defence Of Body Does Not Extend To Causing
“Section 101 in The Indian Penal Code
When such right extends to causing any harm other than death – If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.”
According to section 101 IPC, the body’s right of private protection must apply in all other circumstances to cause harm and not death except as given in section s 100. In other words, the body’s right to private protection would apply to the assailant’s death only in the circumstances described in section 100.
In all other circumstances, the body’s right of private defence will only apply to cause harm, short of death, but it is important to remember that in all of these cases, the right of private protection of the defender is subject to the limitations set out in section 99.
[1] Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34.
[2] AIR 1965 SC 926
[3] AIR 1963 SC 612
[4] AIR 1965 SC 871
[5] AIR 1983 SC 488
[6] AIR 1979 SC 577