In a Republic Democracy like ours, the constitution provides for “the first rule of criminal law as the rule of self- help”.The constitution of India has provided the Government machinery to ensure a peaceful & fear- free life for its citizens. As a result of which, the state is under the obligation to provide protection to its citizens with respect to their life and their property, the sole reason being arousal of such conditions when the legal aid is not available or police authorities are unable to reach people and there is imminent danger coming to a person or his property, rather than allowing himself/herself to get hurt due to the fear of prosecution. In such a case, such a person under threat may use to power to ward-off such an immediate threat. This is called the“right of private defense”.
The expression ‘private defense’ given in the Indian Penal Code, 1860, has not been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable framework for the exercise of the right. Thus, the right of private defense is the right to defend the person or property of himself or of any other person against any act of another, which if the private defense is not pleaded would have amounted to a crime. This right, therefore, creates an exception to criminal liability against the Penal code.
The endowment of such right for people to defend themselves and could get immunity from the trial is a much-required law for a state which allows not to hesitate in cases when such happens due to fear of prosecution. The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property when immediate aid from the state machinery is not readily available and in so doing he is not answerable in law for his deeds. Let’s understand further about the laws in this context-
• What does the Indian Penal Code1860 provide for the right?
The Indian Penal Code provides for sections 96 to 106which state the laws relating to the right of private defense of person and property. Section 97 says that the right of private defense is of 2 two types:
(i) Right of private defense of “body”
(ii) Right of private defense of “property”.
Body to be protected, maybe one’s own body or the body of another person and likewise, a property may be movable or immovable and may be of oneself or of any other person. The right of private defense is absolutely necessary to be guaranteed by the Constitution for the protection of one’s life, liberty, and property. It is a right inherent in every individual citizen of a country. But the extent of exercising such law has been kind and the amount of force has been kept within certain limits to prevent misuse by law. Thus, when any person makes use of force to protect his property or even his body or his life shall be known to have been exercised the right of private defense.
BACKGROUND: Why are such laws required?
The basic idea behind providing these laws is to encourage its citizens to take necessary steps wherever required for helping themselves as well as others in the absence of any legal aid. The right to private defense is recognized in almost every democratic country, in every system of law and its extent varies in the proportion to the capability of the state to protect the life and property of its subjects. This right must be fostered in every citizen of every free country because no state can however large its resources could be, can afford to depute a policeman to dog the steps of every rouge in the country.
Consequently, this right has been given by the state to every citizen of our country to take the law into his own hand in some conditions for their safety how, but it is necessary to consider that such right could be exercised only when one doesn’t have or cannot have legal recourse. Therefore an act done in exercise of this right is not an offense and does not, therefore, give rise to any right of private defense in return. This right is not dependent on the actual misconduct of the person who repelled, but it depends solely on the unlawful or apparently unjust character of the act attempted, however, if the apprehension is real and reasonable, it makes no difference that it is mistaken.
1. IPC Section 96:Things done in private defense:
Section 96 of the Act above-mentioned provides “Nothing is an offense, which is done in the exercise of the right of private defense.” While it shall be obvious that law does not require a person, whose life and the property is placed in grave danger, to do the logical calculation with nice precision, about the extent of force he shall be required to make use of while defending himself, it also does not countenance that the person claiming such a right should resort to force which is out of all proportion to the injuries received or threatened and far in excess of the requirement of the case. While the law provides for the law of immunity, the onus of proving the right of private defense is upon the person who wants to plead it. But an accused may be acquitted on the plea of the right of private defense even though he has not specifically pleaded it. Secondly, the right of private defense should not be meant to be an offense in return or revenge. Though no absolute right is given under section 96 section 99 makes it crystal clear that the right doesn’t extend so as to inflict more injuries as probable in the circumstances. Likewise, in a free fight in normal circumstances, no right of private defense is available to either party and each party is responsible for their own acts committed. If there is sufficient proof available to the satisfaction of the authority concerned, courts are empowered to exempt the person in such cases. However, here the onus to prove otherwise is on the accused in such type of cases. Nothing has been given in law regarding failure to set up such a defense here would foreclose the right to rely on the exception once and for all.
It is highly unquestionable that the burden on the accused to prove any fact can be discharged either through evidence or even through prosecution evidence by showing a preponderance of probability. It is true that no case of right of private defense of person has been pleaded by the accused not put forth in the cross-examination to the eye-witnesses but it is well settled that if there is a reasonable probability of the accused has acted in exercise of the right of private defense, the benefit of such a plea can still be given to them. The right of private defense, as the name suggests, is an act of defending oneself and not of an offense. Thus, it cannot be allowed that the right could be used as a shield to justify aggression which requires very careful weighing of the facts and evidence in the light of circumstances of each case to decide as to whether the accused had in fact made the right use or misused this right.
It was held in a case that the distance between the aggressor and the target may have an effect on the question of whether the actions amounted to assault. While trying a case it is not allowed to make assumptions without any reasonable basis on the part of the accused as mere possibilities of an attack being committed do not entitle anyone to exercise their right. Also, as the cases differ depending upon the circumstances, no particular standard could be decided to fix a distance, the weapon used, the background and the degree of the use of force or the quest to attack, etc. The efficiency of this right is dependent on the fact that even where the death of the actual assailant has happened during the process, such person who has made use of this right genuinely shall be acquitted in such a case .Thus-
• If the actual assailant has died during the process of struggle
• If any offense has been committed by the deceased which followed the exercise of the right of private defense of body and property has been provided under sections 100 & 103 of the Indian Penal Code...
SOME RELEVANT RULINGS:
i. Thangavel case:
The general proverb that “Necessity knows no law” does not find a place in modern jurisprudence. The right of self-help though is inherent in every person but to achieve that end nothing could be done which stimulates against the right of another person. In other words, “Within humanity, there is a continuous struggle where the motive of self-preservation would dictate definite aggression on an innocent person” on which society places a check with laws.
ii. Kamparsare vs. Putappa:
Where a boy in a street was raising a cloud of dust and a passer-by stopped on the road, boy and beat him, it was held that the passer-by committed no offense. His act was one in the exercise of the right of private defense.
2. Right of private defense of the body and of Property:-
Under section 97 of the Indian Penal Code, “Every person has a right, subject to the restrictions contained in Section 99” to provide a defense to the following persons:
a) First-His own body, and the body of any other person, against any offense affecting the human body;
b) The secondly-The property, whether movable or immovable, of himself or of any other person, against any act which is an offense falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.
This Section limits exercise of the right of private defense to the extent of absolute necessity. It must not be more than necessary for defending aggression. There must be a reasonable apprehension of danger that comes from the aggressor in the form of aggression. This Section divides the right of private defense into two parts, i.e. the first part deals with the right of private defense of a person, and the second part with the right of private defense of property. To invoke the plea of right of private defense there must be an offense committed or attempted to be committed against the person himself exercising such a right, or any other person. The question of the accrual of the right of the private defense, however, does not depend upon an injury being caused to the man in question. The right could be exercised if a reasonable apprehension of causing grievous injury can be established. If the threat to the person or property of the person is real and immediate, he is not required to weigh in a golden scale the kind of instrument and the force which he exerts on the spur of the moment. The right of private defense extends not only to the defense of one’s own body and property, as under the English law, but also extends to defending the body and property of any other person.
Thus under section 97, even a stranger can defend the person or property of another person and vice versa, whereas under the English law there must be some kind of relationship existing such as father and son, husband and wife, etc., before this right may be successfully exercised. A true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing but has not accomplished his mission; but this right is not available to the true owner of the trespasser has been successful in accomplishing possession and his success is known by the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. The onus of establishing the plea of right of private defense is on the accused though he is entitled to show that this right is established or can be sustained on the prosecution evidence itself. The right of private defense is purely preventive and not punitive or retributive. Once it is held that the party of the accused were the aggressors, then merely because a gun was used after some of the party persons had received several injuries at the hands of those who were protecting their paddy crop and resisting the aggression of the party of the accused, there can be no ground for taking the case out of Section 302, I.P.C., if otherwise the injuries caused to bring the case within the definition of murder.
iii. Chotelal vs. State:
B was constructing a structure on land subject to dispute between A and Band A tried to demolish the same. B, therefore, assaulted A with a Lathi. It was held that A was responsible for the crime committed and B had, therefore, a right to defend his property.
iv. Parichhat vs. the State of M.P:
A Lathi blow on his father’s head, his son, the accused, gave a blow with a Ballam on the chest of the deceased. The court held that the accused has obviously exceeded his right of private defense.
3. Right of private defense against the act of a person of unsound mind, etc:
Section 98 of Indian Penal Code, provides that “ When an act, which would otherwise be a certain offense, is not that offense, by reason of immaturity, 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 to defend himself on the ground of private defense against that act which he would have if the act were that offense.
Illustrations:-
1. Z, in the rage of anger, tries to kill A; Here, Z is not guilty. But A also possesses the same right of private defense which he would have if Z were sane.
2. 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 offense. But A has the same right of private defense against Z, which he would have if Z were not acting under that misconception.
This Section lays down that for the purpose of exercising the right of private defense, physical or mental incapacity of the person against whom it is exercised is no bar. In other words, the right of private defense of the body exists against all attackers, whether with or without men's rea. The above-mentioned illustrations point to the fact that even if an attacker is protected by some exception of law, that does not diminish the danger and risk created from his acts. That is why the right of private defense in such cases also can be exercised, or else it would have been futile and meaningless.
4. Act against which there is no right of private defense:
As per IPC Section 99 “ There is no right of private defense against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under color of his office, though that act, may not be strictly justifiable by law.
There is no right of private defense against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith by the reason of his office, though that direction may not be strictly justifiable by law. There is no right of private defense in cases in which there is time to have recourse to the protection of the public authorities.
• The extent to which the right may be exercised:--The right to Private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense.
Explanation 1: - A person is not deprived of the right of private defense against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2: - A person is not deprived of the right of private defense against an act done or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing unless he produces such, demanded.
5. Conditions and limits within which the right of private defense can be exercised:
Section 99 of the Indian Penal Code“gives a defensive right to a man” and not an offensive right. That is to say, it does not arm a man with fire and ammunition, but encourage him to help himself and others, if there is a reasonable apprehension of danger to life and property. The first two clauses provide that the right of private defense cannot be invoked against a public servant or a person acting in good faith in the exercise of his legal duty provided that the act is not illegal.
Similarly, clause three restricts the right of private defense, if there is time to seek help from public authorities. And the right must be exercised in proportion to harm to be inflicted. In other words, there is no right of private defense :
1. against the acts of a public servant; and
2. against the acts of those acting under their authority or direction;
3. Where there is sufficient time for recourse to public authorities; and
4. The quantum of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defense.
The protection given to the public servants is not absolute but subject to restrictions, and the acts in either of these clauses must not be of serious consequences resulting in the apprehension of causing death or of grievous hurt which would deprive one of his right of private defense.
To avail the benefit of those clauses:
(i ) the act done or attempted to be done by a public servant must be done in good faith;
(ii ) the act must be done under the color of his office; and
(iii ) there must be reasonable grounds for believing that the acts were done by a public servant as such or under his authority in the exercise of his legal duty and that the act is not illegal.
v) In re. to Emperor vs. Mammon: The accused which were five in number, went out on a moonlit night armed with clubs & sticks and assaulted a man who was cutting rice in their field leading to his death. The man suffered six distinct fractures of the skull-bones besides other wounds and died on the spot. The accused of being charged with murder pleaded right of private defense of their property. It was held that “No right of private defense under Section 99 is available where there is enough time to have recourse for getting protection from the public authorities”.
In re.Public prosecutors. Suryanarayan: On examination done by customs officers certain goods were discovered to have been smuggled from the state of Yemen into the Indian Territory. During the procedure during the examination, the smugglers attacked and wounded the officers causing them to sustain injuries. Thus, during the trial, they argued that the officers had no power granted to search as no notification provided to the effect declaring Yemen a foreign territory under Section 5 of the Indian Tariff Act. Thus, it was held that the action taken by officers was in good faith and the defense of private defense could not be acceptable.
6. When the right of private defense of the body extends to causing death:
As per section 100 of the IPC “The right of private defense of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offense which occasions the exercise of the right is of any of the descriptions hereinafter enumerated, namely:--
• First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
• Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
• Thirdly-An assault with the intention of committing rape;
• Fourthly-An assault with the intention of gratifying unnatural lust;
• Fifthly-An assault with the intention of kidnapping or abducting;
• Sixthly-An an assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Conditions: To invoke the provisions of sec 100, I.P.C., four conditions must exist:
i. That the person exercising the right of private defense must be free from fault in bringing about the encounter.
ii. There must be present an impending peril to life or of great bodily harm
iii. There must be no safe or reasonable mode of escape by retreat;
iv. There must have been a necessity for taking the life of the prime assailant.
In a relevant case Yogendra Moraji vs. State The SupremeCourt of India in re. Sarkaria, J. discussed in detail the extent and the limitations of the right of private defense of the body. The court gave emphasis to the fact that there must have been no safe or reasonable mode of escape by a retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
However, this rule has created a lot of misunderstanding regarding the as it points in an indirect way that rather than trying to defend one’s own self firestone should initially try to see the probabilities of retreat by using force which is contrary to the principle that the “law does not encourage cowardice on the part of one who is attacked”. This retreat theory, in fact, is an acceptance of the” English common law” principle of defense of body or property under which the common law courts always insisted to look first as to“ whether the accused could prevent the commission of a crime against him by retreating”.
Similarly in Nand Kishore Lal, In this case, all the accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism. Within a year after her abduction, the relatives of the woman’s husband came and demanded her return from the accused to which the accused refused to comply with as well as the woman refused to rejoin her previous husband. Further, the husband and relatives tried to take her away with the use of force. The accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held that the “right of the accused to defend the woman against her assailants was held valid and the right to private defense had extended and thus they had committed no offense”.
7. When such right extends to causing any harm other than death?
Section 101 of the IPC Act provides that “If the offense be not of any of the descriptions enumerated in the last preceding sections, the right of private defense 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”.– In re. to case MohinderPal Jolly v. the State of Punjab the facts to the case was “ Where the factory owner killed one of the workers by shooting him by a shotgun, workers of a factory threw brickbats, it was held that the immunity of private defense could not be given because there was no reason of death or grievous hurt”.
8. Commencement and continuance of the right of private defense of the body:
When the right to private defense does starts and till when it continues? Section 102 gives an answer to this question of IPC “The right of private defense of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offense though the offense may not have been committed, and it continues as long as such apprehension of danger to the body continues. In other words, where there is no attack no such right of private defense arises. Moreover, the threat should be in present circumstances immediate and imminent. In Re.Kala Singh case “In this case, the (for e.g. A) deceased was a strong man of dangerous character and had killed one person previously, on a fateful day picked up a quarrel with the accused, a weakling. He threw the accused on the ground, pressed his neck and bit him. The accused as he got free from the clutches of this brutal person took up a light hatchet and gave three blows of the same on the brute’s head. As the wounds were deep, the A passed away three days later. The court held that the conduct was irresponsible and aggressive, into the heat of moment &the circumstances raised a basis for strong apprehension in the mind of the accused that if he hadn’t attacked A, he would be killed otherwise.
Thus, the apprehension must be reasonable and the violence inflicted must be balanced and commensurate with the quality and character of the act done. Only vague words said in the normal circumstances will not justify the exercise of the right of private defense.
9. When the right of private defense of property extends to causing death:
Section103 of IPC“The right of private defense of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offense, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offense of any of the descriptions hereinafter enumerated, namely-;
• First-Robbery;
• Secondly-House-breaking by night;
• Thirdly-Mischief by fire committed on any building, tent or vessel, which building, the tent or the vessel is used as a human dwelling, or as a place for the custody of property;
• Fourthly-Theft, mischief, or house-trespass, under such circumstances, as may reasonably cause apprehension that death or grievous hurt will be the consequence of such right of private defense is not exercised.
Thus, section 103 of the Indian Penal provides the right of private defense to the property in the same way as section 100 is meant for exercising the right of private defense for the protection to the body of a person. It justifies homicide in case of the offense regarding robbery, housebreaking by night, arson and the theft, mischief or house-trespass which later cause apprehension for hurt or grievous harm. However, for exercising this right a proper legal title should be there to claim possession over the property, otherwise, he cannot claim any right of private defense regarding such property. Similarly, the right to disown/ dispossess a trespasser is not available to the true owner of the trespasser becomes successful in accomplishing his possession to his knowledge. This right can be only exercised against certain criminal acts for certain offenses which are mentioned under this section. In re.ToMithu Pandey vs. State where the facts of the case were “Two persons armed with weapons ‘tangi’ and ‘danta’ respectively were supervising the collection of fruit by laborers from the trees which were in the possession of the accused persons who protested against the illegal act. In the dispute that followed one of the accused suffered multiple injuries because of the assault. The accused made use of the force, resulting in the death of one of the accused consequently. The Patna High Court held that the accused were entitled to the right of private defense even to the extent of causing death as the fourth clause of this section as applicable.
Again in Jassa Singh vs. the State of Haryana: The Supreme court held that the right of private defense of property will not extend to the causing of the death of the person who committed such acts if the act of trespass is in respect of open land. Only a house-trespass committed under such circumstances as may be reasonably caused death or grievous hurt is enumerated as one of the offenses under Section 103.
10. When such right extends to causing any harm other than death:
Section104of the IndianPenal Code 1860 provides “If the offense, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defense, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death”.
This Section cannot be said to be giving a concession to the accused to exceed their right of private defense in any way. If anyone exceeds the right of private defense and it results in the death of the trespasser, he would be guilty under Section 304, Part II. This Section is in corollary to Section 103 in a similar way Section 101 is a corollary to Section 100.
It was decided upon in the case by Kerala High Court in V.C.Cheriyan vs. State this case the three deceased people along with others had laid a road near to a property to the church in such a situation where a criminal case was pending in court against them. The above provided accused persons later attached barricades across the road so that the view could be closed down. In a fit of rage, the deceased started removing the barricades by themselves and later were stabbed to death by the accused. Giving judgment to the case the Kerala High Court held that the Church people had the right of private defense to the property of the church but not to the extent of killing an unarmed person from whom there was no apprehension to death and their conduct did not fall under Section 103 of the Code.
11. Commencement and continuance of the right of private defense of property:
When does the right to private defense to property arises and till when does it continue? Section105 of the Indian Penal Code states “ The Right of private defense of property commences when a reasonable apprehension of danger to the property commences. Thus, the right of private defense of property against theft continues till the time unless the offender has caused his retreat with the property or either the public authorities to get available for assistance, or if the property has been recovered. Similarly, the right of private defense of property against robbery continues as long as the offender causes or attempts to cause death or hurt or wrongful restraint to any person of as long as the panic of either of instant hurt or instant death or of instant personal restraint continues to happen.
However, the right can be exercised if only there is no time to have the recourse of public authorities. Where, the trespass is accomplished successfully the true owner of the property loses the right of possession, also the right of private defense to protect his/her property.
12. Right of private defense against deadly assault
Section106 provides for a case when there is a risk of hurt when there is a risk of harm to an innocent person “If in the exercise of the right of private defense against an assailant which reasonably causes the apprehension of death or grievous hurt the defender shall be so situated that he cannot effectually exercise that right without risk of harm to an innocent person his right or private defense extends till the running of that risk”.
For instance, where is attacked by a mob who is in a rage to cause the death of such a person? In such a situation he cannot effectually exercise his right of private defense without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offense if by so firing he harms any of the children.
This section removes an impediment in the mind of a person with regard to the right to defend himself as to whether he is entitled to exercise his right even when there is the slightest possibility of some innocent persons being harmed due to his act. Section 106 says that in the case of an assault reasonably causing an apprehension of death, if the defender is coming in a situation where there exists a risk of possible harm to some innocent person involved there is no necessary restriction on him to exercise his right private defense and he is entitled to bear that risk as per the law.
Conclusion:
Thus, the right of private defense is an important rule of law which gives immunity for helping one's own self in the case of any dilemma where no chances remain available to escape otherwise. The right of private defense is a good weapon in the hand of every citizen to defend himself but not to be used with an intent to take revenge but towards saving from the risk of immediate threat and imminent danger of an attack to life and property. But, where there are rights, they tend to be misused sometimes, and it becomes difficult for the court to ascertain whether the exercise of the right of genuine or an offense committed for revenge. To justify the genuine exercise of this right of private defense following should be scrutinized properly -
• The entire incident and timing-wise happening of events.
• The quantity or types of Injuries received by the parties respectively.
• The imminence of threat to any of the parties concerned.
• Reasons which led to the happening of events.
• Possibilities regarding the timing or situation and whether the accused had time to recourse to public authorities for help.
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