Right of Private Defence

Introduction


The right of private defense is recognized by every law system as it is a very necessary and valuable right that must be granted to every citizen of every free country. It is the primary duty of the state to protect the individuals by effective resistance against unlawful aggression. For the protection of the liberty and property of citizens, it is necessary to grant them the right of private defense but the amount of force to be used is regulated by law. The law does not require any individual to behave like a coward but it should also be kept in mind that there is no right of private defense when there is time to recourse to the police protection.

Section 96 to 106 of the Indian Penal Code provides the laws relating to the right of private defense of person and property. The provisions contained in this section provide the citizens with the authority to use force to protect themselves from unlawful aggression against their bodies or property. There are two kinds of private defense- the right of private defense of the body and the right of private defense of property.
Note -person and property concerning this section may be one’s own or belonging to another.

Difference between Indian law and English law-


Under Indian law, one can defend his property and person as well as the person and property of others also but under English law, one can defend only his personal property or person and has no right to defend the person or property of others unless he is the guardian, ward, master or servant of that another.

Section 96 IPC- Nothing done under the right of private defense is an offense.
The right of private defense is granted under section 96 of the Indian penal code is not an absolute right and is qualified by section 99. Section 99 clears that the right of private defense does not include infliction of more harm than is necessary in the case. The person who wants to plead the right of private defense bears the onus of proving it. A person is absolved of all the guilt under the right of private defense. No right of private defense lies where a person is an attacker himself or where there is no apprehension of danger.

Section 97 IPC-
This section limits the exercise of the right of private defense subjecting them to the restrictions contained in section 99 of the Indian Penal Code. This section deals with the kinds of a right of private defense as-
(1) against any offense affecting his own body or the body of any other person.
(2) against any act of robbery mischief for criminal trespass or an attempt to commit such a crime against any property which is movable or immovable, belongs to himself or any other person.
Thus, it can be concluded that even a stranger can define the property or person of another. The right of private defense is not punitive but purely preventive.

Section 98 IPC-
An act that would be an offense is not considered an offense but the right of private defense does not vary in the following situations-
(1) want of maturity
(2) reason of youth
(3) unsoundness of mind
(4) intoxication
(5) misconception
Therefore it can be concluded that every person has the same right of private defense against the above-mentioned persons as he has against a sane person.

What are the exceptions to private defense?


When an act does not reasonably cause the apprehension of death or grievous hurt by any act of a public servant done in good faith or under his duty, no right of private defense lies. Similarly, when there is time to have recourse to the protection of the public authorities, there lies no right of private defense.

Under what circumstances does the right of private defense AGAINST THE BODY extend to causing death?


Section 100 of the Indian Penal Code enumerates the circumstances under which the right of private defense of body extends to causing of death-
(1) Fear of death- An assault that may cause a threat of death as a reasonable consequence.
(2) Fear of grievous hurt- An assault that may cause the threat of a grievous hurt as a natural consequence.
(3) Intention of rape-An assault which is committed with the intention of committing a rape.
(4) Intention of gratifying unnatural lust-An assault which is committed with the intention of satisfying an unnatural lust.
(5) Intention of abduction or kidnapping- An assault that is committed with the intention of kidnapping or abduction.
(6) Intention of wrongful confinement- An assault which is committed with the intention of wrongful confinement restraining someone to have recourse to the public authorities.

Section 101 IPC – Harm caused other than death


The right of private defense of the body extends to causing harm to the assailant in any way other than death, subject to the restrictions mentioned in section 99. This section does not extend to causing death when it is not necessary.
Therefore it can be concluded that any harm can be inflicted in the exercise of private defense but it should not fall within the provisions enumerated in section 100.

Section 102 IPC- Commencement and continuation


The right of private defense commences when one apprehends reasonable and imminent danger to the body, notwithstanding that the offense may not be committed but an attempt or threat to its commitment is present. The right to private defense continues till the apprehension ceases.

Section 103 IPC- The right of private defense of property extending to causing death.


The right of private defense under this section extends to causing of death subject to the restrictions mentioned in section 99 if the offense or the attempt to commit it is one of the following-
(a) Robbery,
(b) housebreaking by night,
(c) mischief by fire,
Such circumstances under which it seems necessary to exercise the right of private defense under the fear of death or grievous hurt.

Section 104 IPC – Right of private defense extending to any harm short of death
This section provides that the amount of force used in exercising the right of private defense should in no case inflict more harm than is necessary and no protection can be sought where the harm caused is excessive and unnecessary or extending to death.

Section 105 IPC – commencement and continuation.
The right of private defense commences when one apprehends reasonable and imminent danger to the property, notwithstanding that the offense may not be committed, but an attempt or threat to its commitment is present. The right to private defense continues till the apprehension ceases. Such cases are – Housebreaking, theft, or mischief.

Section 106IPC – when there is the risk of harm to an innocent person in exercising the right of private defense
The section allows an individual to exercise the right of private defense exercise result in causing harm to an innocent person. Sometimes a person is so situated, that he cannot protect himself without causing such harm to some innocent person but the right of private defense against a deadly assault extends to running that risk.

To justify the right of private defense under the section the following situations are to be examined-


(1) The entire story of the accident
(2) The injuries that the accused has received
(3) Imminent threat to the safety
(4) Injuries that the accused has caused
(5) Whether the accused could recourse to the public authorities.

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