Analysis of Right to Private Defence

This blog is inscribed by Prateek Chandra.

This blog is based on the critical analysis of right to private defence on the grounds that one can take private defence and what are the limitations to it. The blog further contemplates the scope of private defence as well as the suitable conditions  upto which one can excise private defence and what are the factors in which the private can be considered and accepted under law provisions.  Moreover it will tell about what are conditions where plaintiff can take such defence regarding reasonable apprehension of receiving any harm or injury from defendant to protect himself.

Introduction

“Nothing is an offence which is done in the Right of Private Defence”.

Private Defence Can be defined as an act done in protecting one’s body and property from other person when there is reasonable apprehension of receiving injury or any damage to one’s property is considered to be as a private defence.

In general private defence is a general exception which speaks about the defence which one can take for saving his own life or another person life and property only when there is necessary condition or the steps that are required to be taken at the particular time and at the particular condition.

One of the major things that are considered to be remember in taking the plea of private defence is that the actions that has been taken by the plaintiff to save his life from the defendant should be reasonable enough that can directly show that there is an intension to harm or to provide injury and the defendant is been able to commit the crime meeting all the necessary conditions.

 The main objective of private defence taken by accused should be to only defence himself but not to just providing unnecessary harm to other harm if the defendant is not able to provide any harm to the plaintiff and it should be reasonable to take any action harming defendant in plea of private defence . The burden of proof is totally on accused that why he had taken such actions and what were the conditions that made the plaintiff do take such necessary steps to defend himself.

The rights of private defence and objective can be clearly understood from the case of Arjun v. State of Maharashtra[i]. The case discusses about whether there is was the conditions of taking the plea of private defence to protect himself from the defendant. Considering the background facts also because the incontrovertible fact that there was no premeditation and therefore the act was committed during a heat of passion which the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, the plaintiff cannot take the plea of private defence and hence case falls under the fourth exception to Section 300 IPC.

Right of private defence is divided into parts:

  1. According to Section 97 of Indian Penal Code, Every person has a right to protect his own body and therefore the body of the other person, against any offence affecting the physical body.
  2. The property , whether movable or immovable , himself or of any other person , against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit the same.

Right to Private Defence to the Body

The reason and objective of taking private defence should be taken to protect the body

The main reason to take private defence is to protect one’s body is when there is only reasonable apprehension of danger to the body of a person arises from an attempt or threat to commit the offence though the offence might not are committed and it still continues as long intrinsically apprehension of danger to the body continues as mentioned in Section 102 of IPC.

According to this section, it generally state the whether there is immense need to take the private defence to protect oneself from any harm to their body in the form of any offence or any harm from anyone. The victim is not expected to wait until the act has been committed. The extent to which this right can be exercised does not depend upon the actual danger but the apprehension it has caused. The threat must give rise to imminent danger but not distant danger. The next phase is that of continuance which permits the action to be in motion until the apprehension of danger continues.

In the case of Sitaram Das v. Emperor[ii], 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 still defend till he finds himself out of danger.

For claiming right of personal Defence extending to voluntarily causing death, the accused must establish that there have been circumstances giving rise to reasonable grounds for apprehension that either death or grievous hurt would be caused to him.

The enforceability of this act which states that once the danger of death or grievous hurt has disappeared, the person can’t cause any harm to the other party and if he does, he cannot take the defence of Private defence.

Right to private defence regarding protection of body and its scope.

There are certain rights available regarding to one’s protection of body under private   defence which are mentioned in section 100 and 101 of IPC which mentions the situations and for the offences one can take private defence to protect oneself. The offences are:

  1. Assault – Death
  2. Assault – grievous hurt
  3. Assault – committing rape
  4. Assault – unnatural lust
  5. Assault – kidnapping or abducting

With respect to these offences committed by the defendant, the one can even cause death of another person if these offences had been committed by the defendant on the plaintiff as mentioned in Section 100 of IPC. However certain offences are restricted by Section 99 of IPC which specifically mentions the conditions under which one can take the plea of private defence.

In the case of Mohinder Pal Jolly v. State of Punjab[iii], there was a dispute between the workers and the management over demand for wages. The workers threw brickbats at the factory. The owner of the factory came out and fired with a revolver killing one worker. In this case, 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.

For claiming right of personal Defence extending to voluntarily causing death, the accused must establish that there have been circumstances giving rise to reasonable grounds for apprehension that either death or grievous hurt would be caused to him just like in the case of Vishvas Aba Kurane v. State of Maharashtra[iv].

One another major point in right to private defence is that one can defend himself from the people of unsound mind if there is any reasonable apprehension of fear and or attempt or act done by the unsound mind person on one’s body then one can defend himself from any bodily harm or any grievous hurt from that person which is mentioned in section 98 of the IPC as it is very important exception in the case of private defence as people of unsound mind are immune from getting punished for any offences.

Private Defence Regarding Private Property

Private Property can be legally defined as property owned by private parties – essentially anyone or anything other than the government. Private property may consist of real estate, buildings, objects, intellectual property upon which every individual has the right to defend his property from being getting harm or stolen from another person.

The main reasons and objectives for private defence should be taken regarding property.

The main reason to take private defence to protect its property is that when there is only reasonable apprehension of danger[v] to the property arises from an attempt or threat to commit the offence on the property of the person though even the offence has not been committed yet as stated in Section 105 of IPC. The plaintiff can only take action upto the point of time when the defendant is within the reach of the plaintiff i.e. the defendant is able to be caught by the plaintiff at that moment only not after the defendant is out of the reach of the plaintiff. The offences for which the private defence for the property can be taken are:

  • Robbery
  • House breaking by night
  • Theft
  • House trespass

Right to private defence and scope and nature of private defence regarding Property.

In protecting the property of one’s own or another person property, and if it leads to cause the death of another person i.e. the defendant then one will not be guilty of murder or any offence if it is done in private defence as mentioned in section 103 of IPC, These above offences are there in which the plaintiff can take the life of the defendant if the defendant commits any of the offences as mentioned above and can use private defence here so as to save his own property or another person property by taking the life of another person in the process of protection of the property from the defendant.

According to Section 104 of IPC, it speaks about the attempt of committing and committing the offences which are different from the offences as mentioned in Section 103 of IPC the plaintiff can harm the defendant but cannot kill the defendant in the following situation or offence of the defendant with respect of restrictions in Section 99 of IPC.

Limitations of private defence of the body and property

The defence to body and property will only be applicable if there is reasonable apprehension of fear and harm is felt by the plaintiff that can cause him any harm within all suitable condition and can get harmed by the defendant. However, there are certain limitations to this right which are defined under Section 99 of IPC (Indian Penal Code) which limits the scope of using private defence to be used to protect oneself.

The limitations that Section 99 of IPC states are:

  • Any act done by public servant in good faith.
  • Any act done when there is no reasonable apprehension of death of grievous hurt or death by defendant.
  • When there is time to have recourse to the protection of the public authorities.

Any act done by public servant in good faith

If any act done by public servant in good faith will not be considered as plea for private defence by the plaintiff as the public servant had taken such actions in good faith and have the necessary permission by the government for the betterment of the society and to stop any crime.

Any act done when there is no reasonable apprehension of death of grievous hurt or death by defendant

This limitation states that the private defence can be excise only if the defendant show reasonable apprehension of committing any injury to plaintiff by having all the necessary conditions to attack the plaintiff i.e. the defendant must be physically and mentally able to provide harm to the plaintiff.

When there is time to have recourse to the protection of the public authorities.

When the act that can cause harm to the plaintiff had a suitable period of time between the commission of a particular offence and there is suitable time on the part of plaintiff to inform public authorities and if the plaintiff does not do so and tackle the problem by own its own by killing the defendant or grievous hurt the defendant in order to defend himself then it will not be considered as private defence like in the case of Jai Dev v. state of Punjab[vi],  it was stated that every citizen has the right of private defence but there measure should be taken to avoid causing harm to others and should tackle the situation if it is manageable.

Conclusion

The right of private defence is obtainable when there’s a reasonable apprehension of danger. It’s important to note that the right of private defence is obtainable as long as recourse to public authorities isn’t possible. No case of reasonable apprehension could even be made if, within the given situation, the assistance of public authorities are often obtained.

The apex court has recognized the human element live and by extension, has asked for due consideration to incline to any or all actions of the accused on the thought of the circumstances, the emotional turmoil within the mind of the accused, the character of the assault etc. To justify the exercise of this right the next are to be examined:

  • The whole accident
  • Injuries received by the accused
  • Imminence of threat to his safety
  • Injuries caused by the accused.

Moreover this general exception that’s private defence should be used only the plaintiff feels the reasonable apprehension of fear of injury or harm from the defendant and therefore the defendant is in a position to supply any harm to the plaintiff i.e. the defendant must have all the acceptable condition to harm the plaintiff.

Nothing is an offence in private defence but, nothing may be a defence or exception when there no reasonable apprehension of fear and injury of body and property


[i] Arjun v. State of Maharashtra (2012) 5 SCC 530, Penal code.

[ii] Sitaram Das v. Emperor (93 Ind CAS 986)

[iii] Mohinder Pal Jolly v. State of Punjab   (AIR 1979 SC 577)

[iv] Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414

[v] Referring to creating an enough amount of fear and doubt to act to protect oneself.

[vi] Jai Dev v. State of Punjab (1963 AIR 612)


References

Books referred:

1. Bhattacharya, Prof. T, Indian Penal Code, 5th Edition, Central Law Agency, Allahabad, 2007.

2. Gandhi, B. M, Indian Penal Code, 2ND Edition, Eastern Book Company, Lucknow, 2006.

3. Tandon, Mahesh Prasad, Indian Penal Code, Allahabad Law Agency, Faridabad, 2006.

4. Gaur, Shri Narain, Indian Penal Code 1860, Dwivedi & company, Allahabad, 2005.

5 .Bare act Indian penal code 1860.

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