Right of Private Defence (Section 96-106) under Indian Penal Code, 1860
Abstract
Under these sections, the “Right of Private Defence” is discussed as a justifiable defence. In such a defence, the act committed by a person is apparently an offence (because, it is done with due deliberation or intention), but still it is deemed to be justifiable, because it is done for the purpose of repelling unlawful aggression which is considered to be a meritorious purpose. And hence, such an act (done in the exercise of right of private defence does not amount to an offence).
We’ll discuss all these sections in this paper of “Right of Private Defence”.
- Basis of this Right:
To defend oneself is a natural instinct in a man which he has in common with every other animal. Huda says, “This right is recognised in every system of law. The Duty is primarily the duty of the state, but no state, no matter how large its resources, can afford to depute a policeman to dog the steps of every brigand in a country, or to present at every riot or affray.”
- Persons against whom Right of Private defence can be exercised:
It is available against all persons, except against those which are mentioned in Section 99.
- 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 want maturity of understanding the Unsoundness mind or the intoxication the person doing that act or by reason of misconception on the part of a person. Every person has the same right of private defence against the act which they 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 impeding harm, rape, unnatural lust, kidnapping or abduction, wrongful confinement etc.
(3) There must be no state or reasonable mode of escape by retreat etc.
(4) There must have been a necessity for taking the life.
- Section 101-
When such a right extends to causing any harm other than death.
If the offence is not of any of the description 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 mentioned 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 commences 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 offences are not any of the as defined under section 103 then the right of private defence, subject to restriction mentioned 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 commences as soon as a reasonable apprehension of danger to the property.
In case of theft, the right of private defence continues till the offender has retreated with property, or till he obtains public authority.
In case of robbery, the right of private defence of property continues till the apprehension of death or hurt or wrongful restraint 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 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.
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