This article has been written by Ms Arundhathi G, a 3rd year BA LLB Student from Bharati Vidyapeeth Deemed to be University, New Law College, Pune.

Introduction 

 In addition to his property, an individual can also exercise his right against the property of others. The privilege or right of private defence against property is exercised against burglary, theft, vandalism or a crime or robbery, mischief or trespass which the person feels is likely to cause death or serious injury. Everyone can remove their property and turn away any trespassers who enter their property without permission. Be that as it may, if the criminal has title to the property and the owner contemplates it, the privilege of private defence is not defenceless to the owner. For example, a resident. Conditions for the right to the protection of private property 

 Exercising such a right requires the fulfilment of the following conditions: 

1. The offender must be in actual physical possession of the property for a sufficient time; 
2. Possession must be known by the owner, either indirectly or without concealing the truth; 
3. The procedure by which the transfer of the beneficiary by the violator must be complete and final; 
4. the cultivated land can appear, no one, including the actual owner, can destroy these crops at this stage. 

Possession of property 

 If the property is in the possession of the criminal and the owner knows it, the owner has no right of private defence against the property. On the other hand, if the criminal does not have the property, the property owner has a right to private defence. Thus, ownership of property plays an important role in terms of the right to protect private property.  

Right of private defence of trespasser

 The right of self-defence against an intruder is available as long as the intruder is down. If the trespasser attempts to seize or remove the owner’s property, the owner has the right to inflict such injuries on the trespasser as to remove him from the property. The moment the offender is caught, his privilege of private defence is lost, and he cannot take the law into his own hands or harm the offender. There are situations where private defence against the owner is possible. If the property is in the legal possession of a person and the owner tries to remove it from the property, the owner of the property has the opportunity to apply for private protection. Private protection of property includes causing death 

 An individual may not use the privilege of protecting his property to cause the death of any person, except in the following cases: 

• Robbery 

 According to Section 390 of the Indian Penal Code, robbery can be reported in two different ways. In the long run, burglary is either a theft or a forced move. A burglary is a robbery if a person during the theft: 1. Causes death, injury, wrongful restraint, unlawful imprisonment; 

2. Attempts to cause death, injury or wrongful restraint; 
3. Causes fear of death, injury or unjust restraint; 
4. Attempts to cause fear of death, injury or illegal birth. 

Blackmail or Extortion, is theft when a person fears the passing of a moment, injury or wrongful restraint while committing the robbery. 

• House-breaking at night

 According to Section 446 of the Indian Penal Code, another person has the right of private resistance if the person breaks in at night if it causes the death or death of the intruder. 

• Mischief by fire

 This is explained in Section 436 of the IPC. If someone acts unjustly to damage someone’s property, it goes badly. Mischief by fire is considered the worst kind of mischief. if someone commits an offence by burning a building, tent or vessel used for human habitation; someone else has the privilege of causing the death of that person under private protection. 

Robbery, Mischief or a crime involving a reasonable suspicion of death or serious injury 

 If a crime of theft, robbery, mischief or trespass has been committed against someone’s property, a private person cannot generally cause the death of the person responsible. In any case, where a person has a reasonable fear or threat that, if he does not cause the death of that person, he will cause death or intolerable injury, he may cause the death of the offender. This can be seen in Kanchan v. State. The defendant does not reserve the right to cause death because the victim and his friends have done wrong on the defendant’s property. There must be a reasonable risk that death or serious injury may in some way result from the act. In all the above circumstances, even though the right of an individual to cause the death of an aggressor can be achieved, the privilege cannot be exercised beyond what is essential. 

When Right of Private Defence of Property Extends to Cause other than Death

If it is a crime, the commission or attempted commission of which requires the operation of the right of private defence, whether it is burglary, vandalism or crime, that right does not extend to intentionally causing death but extends to intentionally causing harm to others. then death to the offender within the limitations specified in section 99. This section cannot be said to authorize the accused in any way to exceed his right to private defence. If someone exceeds the privilege of private defence and causes the death of the violator, he is liable under Section 304 Part II. That episode is the final product of section 103, while section 101 is the end of section 100.

In the case of V.C.Cheriyan Vs. the state, the three deceased persons, along with another person, illegally built a street through the private property of the church. A criminal case was pending against them in court. Three dead connected to the church placed a blockade on this street to close it. The accused injured three dead people who started to evacuate from those blockades. The Kerala High Court agreed that ecclesiastical persons have the privilege of private defence, but not to the extent of causing the death of an unarmed deceased, whose act does not fall under Section 103 of the Act. 

Right of Private Defence Short of Death

 Section 104 limits the privilege of private defence of property because section 101 prevents a body with a right of private defence from causing harm to death while exercising the privilege of private defence. Section 104 provides, where appropriate, that if the crime giving rise to the private defence privilege was robbery, mischief or criminal trespass and none of the descriptions in section 103, the private defence privilege only extends to intentional injury. except for death. I.P.C. Section 104 I.P.C. is an end product of Section 103. 

 In Nathan v. State of Madras, the High Court held that since it did not give the impression that the collector had deadly weapons, there was no fear of death or serious injury to the appellant. and his party under the I.P.C. to section 104. Their privilege was limited to causing injury other than death. But in this way the accused persons exercised the right of protection of private property, exceeded that right by causing the death of another party and then their case came under the I.P.C. within the ambit of Exception 2 of Section 300, they are also liable for culpable homicide. does not constitute murder under the I.P.C. under section 304. and not to kill.  

Conclusion 

 To legalize the operation of this following privilege, it is necessary to check: 

1. The whole accident; 
2. injuries caused to the accused; 
3. a threat to his security; 
4. injuries caused by the defendant; 
5. Circumstances, whether the defendant had the opportunity to prepare an action plan for the experts. 

The right to private defence is a worthy weapon in the hands of every resident to protect himself. This privilege is not in retaliation for the risk of abuse and imminent danger. If anyone abuses this right, it is difficult for a court to know whether or not this privilege has been exercised according to any fundamental honesty.

References

1. Nathan v. State of Madras, AIR 1973 SC 665.
2. V.C. Cheriyan Vs. State of Kerala, 1982 CriLJ 2071.
3. Kanchan v. State, AIR 1954 All 153.
4. https://www.legalserviceindia.com/article/l470-Private-Defence.html#:~:text=The%20right%20of%20private%20defence%20of%20property%20against%20robbery%20continues,of%20instant%20personal%20restraint%20continues.
5. https://blog.ipleaders.in/private-defence-related-to-property-a-guide/
6. https://timesofindia.indiatimes.com/readersblog/lawpedia/right-of-private-defence-33052/