This article has been written by Ms. Muskan Chugh, a student studying Ll.B. from Department of Laws, Panjab University, Chandigarh. The author is a 2nd year law student.
WHAT IS CONSIDERED AS SELF DEFENCE
Self defence
Self defence in simple terms means doing some act in response of the imminent danger so as to protect one’s life or property or any other person’s life or property.
The concept of self defence
A state is duty bound to protect its citizens from any miss happening, but it is not at all possible for the state to keep a police officer as a guard for each and every citizen in the state. Thereby, state expects its citizens to be brave enough to face any danger when it comes and do the act whichever is needed for the protection of one’s own or others life and property.
Section 96
Section 96 of Indian Penal Code, 1860 states that, “nothing is an offence which is done in the exercise of the right of private defence”.
Anything or any act done by any person in the light of private defence is not an offence.
Section 97
Every person has a right to protect/defend his own body and property or any other person’s body and property.
BUT ARE ALL THE ACTS DONE BY ANY PERSON IN PROCESS OF SAVING HIMSELF BE CONSIDERED AS SELF DEFENCE? AIN’T THERE ANY RESTRICTIONS?
Section 99
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised.—The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant
Explanation 2.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
This section provides for certain restrictions as to what acts cannot be termed as self defence. In other words, there is no right to private defence against:
- against the act of a public servant acting in good faith
- against the acts of those acting under their directions
- where there is sufficient time to recourse to public authorities
- the quantum of harm caused shall in no case be excess of the harm that may be necessary for the purpose of defence.
In all the given cases, there is no right to private defence available.
Case-
JAI DEV V STATE OF PUNJAB, 1963
The Hon’ble Supreme Court in this case held that the right to private defence comes to end when the danger/threat ceases to exist. If the accused fired rifle shots on the assaulters when all of them had run away and are shooting them from a long distance, they cannot claim right of Private defence and are guilty of murder.
CAN CAUSING SOMEONE’S DEATH ALSO A DEFENCE? IS IT NOT A CRIME?
Section 100
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly – Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly – An assault with the intention of committing rape;
Fourthly -An assault with the intention of gratifying unnatural lust;
Fifthly -An assault with the intention of kidnapping or abducting;
Sixthly -An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Seventhly – An act of throwing or administering acid1 or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
A person can cause the death of any person, under the restrictions mentioned in section 99, if the offence which occasions the exercise the right be any of the descriptions hereinafter enumerated, namely –
- causing the apprehension of death
- causing the apprehension of grievous hurt
- with the intention of committing rape
- with intention of gratifying unnatural lust
- with the intention of kidnapping or abducting
- with the intention of wrongfully confining a person
- an act of throwing acid
In all the above-mentioned acts, a person is justified in causing death of the assaulter.
Case-
YESHWANT RAO V STATE OF MADHYA PRADESH, AIR 1992 SC 1683
The minor daughter of the accused had gone to toilet to the rear side of the house. The accused after seeing his minor daughter being indulged in sexual intercourse with the deceased, hit him with spade and the deceased tried to run and fell and died due to liver injury. The prosecution stated that the minor girl consented to it. The Court in this case held that the consent of minor is not valid and it would amount to rape under section 376, IPC. Hence, the right of private defence was valid in this case.
Section 103
The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:—
First — Robbery;
Secondly —House-breaking by night;
Thirdly — Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
Fourthly —Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised
This section provides for the right of private defence of property which extends up to causing of death of the wrong doer, if the offence committed is any of the following –
- Robbery
- House breaking by night
- mischief by causing fire
- theft, mischief or house trespass which may cause apprehension of death or grievous hurt.
In no other case, the right will exceed up to causing of the death of wrong doer.
Difference between Self defence and Private defence
Defence in simple terms remains the same, i.e, defending something against someone. But there is a difference between Self defence and Private defence. Self defence is done to protect one’s own self from some harm. The area of scope of self defence is restricted but Private defence is wider as it is available for one’s own self and others as well. It is clearly mentioned in the Section 97 of Indian Penal Code,1860.
CONCLUSION
The right of private defence was the need of the hour. If the citizens are not capable enough for protecting themselves, then the rate of crimes in the state would increase. This right has to be used in proportion of the danger/ threat. If used in excess, would amount to an offence. It needs to be interpreted keeping in mind the restrictions of section 99. It is a defensive and not a punitive right.
References
Indian Penal Code, 1860
PSA Pillai’s Criminal Law
KD Gaur Criminal Law
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