The protection of life and property is axiomatic in every civilized society and because it is impossible for the State to do so on every occasion – as law enforcement officers cannot be omnipresent, the individual is given the right of private defence. The right of private defence legally accords to the individuals the right to take reasonably necessary measures to protect themselves under special circumstances.
It is the first duty of man to help himself. The right of self-defence must be fostered in the citizens of every free country. The right is recognized in every system of law and its extent varies in inverse ratio to the capacity of the state to protect life and property of the citizens. It is the primary duty of the state to protect the life and property of the individuals, but no state, no matter how large its resources, can afford to depute a policeman to dog the steps of every rouge in the country.
Supreme Court said that the right of private defence is a defensive right surrounded by the law and is available only when the person is able to justify his circumstances. This right is available against an offence and therefore, where an act is done in exercise of the right of private defence, such an act cannot go in favour of the aggressor.
Right of self-defence is based upon the general maxim that “necessity knows no law”
Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is absolutely necessary. The vigilance of the Magistrates can never make up for vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total to individual resistance[vi]. Take away this right and you become, in so doing, the accomplice of all bad men.” This right is based on two principles,
It is available against the aggressor only, and
The right is available only when the defender entertains reasonable apprehension.
Right of private defence serves a social purpose and the right should be liberally construed. Such a right is not only a restraining influence on corrupt characters but also encourages manly spirit in a law abiding citizen. It should not be narrowly construed as it necessitates the occasions for the exercise of this right as an effective means of protection against wrong doers.
The Right to private defence of a citizen, where one can practically take law in his own hands to defend his own person and property or that of others, is clearly defined in Section 96 to Section 106 of the Indian Penal Code.
Section 96 talks about things done in private defence – Nothing is an offence, which is done in the exercise of the right of private defence.
The right of private defence will completely absolve a person from all guilt even when he causes the death of another person in the following situations, i.e
If the deceased was the actual assailant, and
If the offence committed by the deceased, which occasioned the cause of the exercise of the right of private defence of body and property falls within anyone of the six or four categories enumerated in Sections 100 and 103 of the penal code.
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