Right of private Defence
Sections 96 to 106 of the Indian Penal Code state the law relating to the right of private defence of person and property. The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer to protect 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. Self-help is the first rule of criminal law. The right of private defence is necessary for the protection of one’s life, liberty and property. It is a right inherent in a man. But the kind and amount of force are minutely regulated by law. The use of force to protect one’s property and a person is called the right of private defence.
Private Defence; Meaning and type
The expression ‘private defence’ that has been used 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 in India, the right of private defence 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 defence is not pleaded would have amounted to a crime. This right, therefore, creates an exception to criminal liability. Some of the aspects of the right of private defence under the IPC are that no right of self-defence can exist against an unarmed and unoffending individual, the right is available against the aggressor only and it is only the person who is in imminent danger of person or property and only when no state help is available. The right of private defence is a natural right that is evinced from particular circumstances rather than being like a privilege.
However, the most important principle is that the right of private defence requires that the force used in the defence should be necessary and reasonable in the circumstances. But, in the moments of disturbed mental condition, this cannot be measured in golden scales. Whether the case of necessity exists must be determined from the viewpoint of the accused and his act must be viewed in the light of the circumstances as they appear on such occasion. Specific limitations have also been provided for when the right cannot be validly exercised and also the provision specifies the cases in which the right can extend to the causing of death of the aggressor.
The reasonable apprehension can only be justified if the accused had an honest belief that there is danger and that such belief is reasonably warranted by the conduct of the aggressor and the surrounding circumstances. This brings in an iota of an objective criterion for establishing ‘reasonableness.’ The imminence of danger is also an important prerequisite for the valid exercise of self-defence. Thus, there should be a reasonable belief that the danger is imminent and that force must be used to repel it.
Nature of the right
It is the first duty of a 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 the 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. One thing should be clear that there is no right of private defence when there is time to have recourse to the protection of police authorities. The right is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or wrongful character of the act attempted and if the apprehension is real and reasonable, it makes no difference that it is mistaken. An act done in exercise of this right is not an offence and does not, therefore, give rise to any right of private defence in return.
The law of private defence is based on two different principles
1- Everyone has the right to private defence of his own body and property and another body and property.
2-The right of private defence does not apply to those cases where the accused himself is an aggressive party.
Section 96-
Nothing is an offence that is done in exercise of the right of private defence.
Section 97-
Right of private defence of body and property
Every person has rights subject to the restriction contained in section 99 to defend
(1) his own body and body of another person against any offence effectively the human body.
(2)The property, whether movable or immovable of himself or any other person against any act which is an offence falling under the definition of theft, robbery, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Section 98
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 the youth they want of maturity of understanding the Unsoundness mind or the intoxication the person doing that act or because of misconception on the part of a person. Every person has the same right of private defence against the act which be would have in the act were the offence.
Section 99
Act against which there is no right of private defence
According to section 99 of the Indian penal code, there is no right to private defence
(1) Against the act of a public servant acting in good faith.
(2) Against the act of the person who acts under the authority or direction of a public servant.
(3) where there is sufficient time for a resource to public authority.
(4) The quantum of harm that may be caused shall no case be in excesses.
Section 100
When the right of private defence of the body extends to causing death
To invoke section 100 of the Indian penal code following four conditions must exist.
(1) The person exercising the right of private defence must be free from fault in bringing about the encounter.
(2) There must be present impending harm, rape, unnatural lust, kidnapping or abduction, wrongful confinement etc.
(3) There must be no state or reasonable mode of escape by retreated etc.
(4) There must have been a necessity for taking the life.
Section 101
When such right extends to causing any harm other than death.
If the offence is not of any of the descriptions Enumerated in the last preceding section, the right of the private body does not extend to the voluntarily causing death to the assailants but does extend under restriction mention in section 99 to the voluntarily causing to the assailants of any harm other than death.
Section 102
Commencement and continuance of the right of private defence
The right of private defence of the body commence as soon as the reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence through the offence that may not have been committed. It continues as long as the apprehension of danger to the body continues.
Section 103
When the right of private defence of property extends to causing death
The right of private defence of property extends to causing death under the restrictions mention in section 99 In the following cases
(1) robbery
(2) house-breaking by night
(3) mischief by fire in building, tent, vessel.
(4) theft, mischief, house-trespass.
Section 104
When such right to causing harm other than death
If the offence is not any of them as defined under section 103 then the right of private defence, subject to restriction mention in section 99 extends to cause any other harm, not to the death.
Section 105
Commencement and continuance of the right of private defence of property
The right of private defence of property commence as soon as a reasonable apprehension of danger to the property.
In case of theft right of private defence continue till the offender has retreated with property, or till he obtains public authority.
In case of robbery right of private defence of property continue till the apprehension of death or hurt or wrongful restrain continue.
In case of mischief or trespass as long as the offender continues in the commission of criminal trespass or mischief.
Section 106
Right of private defence against deadly assault when there is a risk of harm to an innocent person
When there is a situation in which reasonable apprehension of death is caused by a deadly assault and the defender cannot exercise the right of private Defence without causing harm to the innocent person then the defendant’s right of private Defence extends to the running of that risk.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs