Protection of life, limb and property is the primary need of every human being after food and shelter. No state is ever equipped enough to do provide it’s subjects with such protection all the time. Hence, the right to exercise violence in order to protect one’s self or property should be granted to the citizens. At the same time, it should not encourage disorder and violence either. Lord Macaulay, while framing the Indian Penal Code had exercised utmost caution in defining the thin line that separates the spirit of courage and the manifestation of evil. The provisions are laid in such a manner that every act of self-defence can be weighed appropriately in precise scales and heroism is encouraged, as long as it is legitimate in the eyes of law.
Legislative framework:
Section 96 to 106 of the Indian Penal Code, 1860, contain the provisions for private defence and its limitations. A person cannot enjoy the benefit of private defence when he is the aggressor. Defence, not counter aggression, is encouraged.
What is private defence (S.96):
Nothing is an offence which is done in the exercise of the right of private defence. It should be kept in mind that this is a defensive and not a punitive right. This provision should be read along with its succeeding ones which provide clear cut exceptions and empowerment to the one exercising the right. The crucial part of this section is the determination of when the right becomes available and when it ceases to exist.
For instance, three women were working in a field are attacked by a man with a knife. One of the women gets hold of the knife and inflicts some injuries in the man’s body which results in his death. Here, it was not a pre-planned attack by the accused. She merely wanted to save herself and the other women who were being attacked by the deceased. She did whatever she could at the moment in self-defence, in this case, to ward off the aggressor. The woman merely exercised her right of private defence and is not guilty of any offense.
Private defence of body and property (S.97):
This section answers the question of what can be protected from an offense. Private defense can be exercised both in protection of body as well as property. It does not necessarily have to be one’s own. The verbatim is clear about “what to protect against”. In case of body, private defence comes into existence only when there is an apprehension or commission of an offense against the human body.[i] For example, the right of private defence cannot be exercised by a husband against the adulterer as ‘adultery’ is not an offense against the human body.
Right to defence against property arises when there is a reasonable apprehension of commission of theft, robbery, mischief or criminal trespass or an attempt to commit such crimes.[ii] Property here means movable as well as immovable property.
Against a person of unsound mind, etc.(S.98):
There are some categories in the IPC which exempts certain kinds of people from criminal liability even when they commit the offense. People under the intoxication, people of unsound mind, children under the age of 12 etc., are some examples.[iii] However, when there is an apprehension of grievous hurt or death posed by one of these people, law equips the threatened to exercise his right of private defence even if it means the death of that person. Once they enter the realm of a potential cause of grievous hurt or death, the law is indifferent to their legal incompetence. Uniquely enough, this provision also includes misconception.
For instance, when a person enters his own house and someone else inside reasonably apprehends that he is an aggressor can exercise private defence. it was an act done in good faith and genuine misconception. Another case where a drunk man attacks a person or a property, anyone in the scene can exercise private defence. Depending on the apprehended damage by the drunk man, they can also inflict necessary harm. The fact that he would not have been held criminally liable even if the offence was committed does not deprive the threatened of the right of private defence.[iv]
When there is no right of private defence(S.99):
- The acts done by or attempted to be done by a public servant[v] or under his direction are at times, strictly justifiable by law must be cooperated with. However, it applies only when the act does not cause a reasonable apprehension of grievous hurt or death. This protection is provided to public servants only as long as they are acting legally and under the colour of their office. It is also mandatory that the person should have the knowledge of the public servant’s authority[vi]. When a public servant is doing an act under the colour of office, acting in good faith causes an apprehension of grievous hurt or death, the other party can exercise his right of private defence.[vii]
- When there is enough time to have recourse to the protection of public authorities. The reason behind granting the right of private defence is the fact that state cannot lend a helping hand at all times and that there are going to be situations where individuals will have to inevitably stand up for themselves. Hence it should be confined only to the occasions when there is no immediate help from the state. However in this case, to deprive a person of their right of private defence depends entirely on the time factor. That is, if help would arrive before the harm or damage is caused and not the proximity of the person to the state authorities. The fact that someone has a police station located very nearby does not mean that they never get to exercise private defence[viii] .
This clause also establishes the extent to which the right can be exercised. The right of defence does not grant anyone to inflict more harm than what is necessary. The question of whether the right has been exercised in excess depends entirely on the facts. The difference between private defence and vengeance is the presence of malice.
Say there is a dispute between workers and the factory owner. The employees started hurling brickbats at the factory. The factory owner comes out with a revolver and starts to shoot the crowd in which an employee has been killed. The court held that the factory owner has exceeded his right of private defence.[ix]
However, no person can be expected to have a calm mind and calculate the proportions of the apprehended injury and how much to inflict in return. There is going to be a lot of commotion and confusion and most importantly, reflexive actions in the scene. It is up to the court to decide from a subjective and pragmatic view, the facts and decide upon the criminality of their actions.
Right of private defence of body extending to cause of death (S.100):
Death is the ultimate punishment one can give a person. The state does not give the right to people to kill. In fact, the very act of giving death penalty is being questioned on the ground that the right to kill is not vested in humans. This does not mean that the situation where killing another is a necessity will not arise. It all comes down to kill or get killed, at times. In the following circumstances the law equips a person with the right to defend himself to the extent of causing death of the aggressor.
- When there is a reasonable apprehension that the assault will result in death.
- When there is a reasonable apprehension that the assault will cause grievous[x]
- An assault with an intention of committing rape.[xi]
- An assault with the intention of gratifying unnatural lust.[xii]
- An assault with the intention of kidnapping or abducting.[xiii]
- When the assault was with an intention of wrongfully confining[xiv] a person and the said person had reasons to apprehend that he will not have recourse to public authorities for release.
- An act of throwing or administering acid or an attempt to do so, provided that it causes reasonable apprehension that it is going to result in grievous hurt.
There are some stipulated conditions that must be fulfilled to exercise this right,
1. The accused should not have brought up the encounter.
2. There must have been a life or limb at peril.
3. There should have been no means of safe retreat.
4. Finally, there must have been a necessity for taking a life.
When the right of defending property extends to causing death (S.103):
Similar to section 100, in order to defend property also the right of private defence can be exercised when the following offenses are committed or attempted to commit,
- Robbery,
- House-breaking by night,
- Mischief by fire committed on any building, tent or vessel. Wherein these are a place for human dwelling or be a place for the custody of any property, and
- When a theft or mischief or house-trespass is committed and it causes a reasonable apprehension that if the right of private defence is not exercised, it may result in death or grievous hurt.
When a group of people who are armed come to a person’s land to evict him from there, he can exercise this right and even cause the death of the aggressor if necessary. The key of this case is that there is apprehension of grievous hurt or death.[xv]
When the right to defend body does not extend to causing death (S.101):
When the offence apprehended to be caused by the aggressor is not any of what was mentioned in the section100, death should not be caused while exercising the right of private defence. Just like every other provision under this chapter, this section also is subject to the restrictions given in section 99. Here the assailant is allowed to cause any harm other than death to the aggressor. Judging these cases depend on the apprehension caused in the mind of the accused. The circumstances of the cases must be ascertained objectively and the apprehension of the accused subjectively.
In Yogendra Morarji v. State of Gujarat[xvi], the accused and the deceased had a dispute over payment. One day when the accused was driving his jeep which was stopped by the deceased and his men and they started to pelt stones at the jeep. The accused shot three rounds at the men in which the deceased was killed. The court held that even though there was apprehension of physical harm, there was not any reason to believe that they would cause grievous hurt or death. Hence the accused was charged with murder.
When the right to defend property does not extend to causing death (S.104):
When theft, mischief or house-trespass does not create the apprehension of grievous hurt or death, the right of defence extends to causing any harm other than death. It is to be noted that mere commission of criminal trespass does not warrant the assailant being killed out of private defence. A house-breaking as given in section 103 only calls for such severe exercise of private defence. However if the accused manages to prove that there was a reasonable apprehension or grievous hurt or death after the assailant trespassed the land, in which case he will be acquitted under section 100.[xvii]
Commencement of the right of private defence of body (S.102):
Right of private defence has a duration. It would create a huge lacuna in the law if the commencement and continuance of the right is not defined clearly. We can break down the provision regarding such commencement of the right in this way,
When – immediately after a reasonable apprehension of danger to the body arises.
Against – an attempt or threat to commit an offence. The offense need not have been committed.
Continuance – the right continues to exist as long as the apprehension of danger to the body continues.
When a person continues to exercise the private defence after the apprehension of danger dies out, it becomes an offence. When a person chases the aggressor who tries to flee and assault him, he does not get the benefit of this section. Once the aggressor started to run away, it meant that the apprehension of danger from him was over and so the right also ceases to exist.[xviii]
Commencement and continuance of the right to defend one’s property (S.105):
Similar to section 103, right to defend property also has a commencing point and conditions to continue as given below,
When does it commence – as soon as a reasonable apprehension of danger to the property arises.
Continuance:
In case of theft continues till,
- The offender retreats from the property
- The help of public authorities is obtained
- The property has been recovered.
In robbery it continues as long as,
- Causes or attempts to cause death or grievous hurt or wrongful restraint to any person
- The fear of instant death or hurt or personal restraint continues.
In case of criminal trespass, mischief and house-breaking the right continues until the offense does.
Right of private defence against deadly assault when there is a risk of harm to innocent person (S.106):
When the situation leaves a person with no choice but to harm an innocent in order to safeguard himself from an apprehended death or grievous hurt, then he is permitted to do so. In Wassan Singh v State of Punjab, where a man shot at the assailant to save himself, the bullet missed the assailant and shot an innocent bystander. The court held that the accused had the right of private defence and acquitted him.[xix]
Conclusion:
Right to private defence is available to every Indian. When there is an imminent danger that calls for defence, one has to stand up for themselves. This reiterates the fact that the state’s control has a threshold. Once things get out of hand, the state empathises with the parties and allows them to break some rules. To delve more into the extent to which one can do to save themselves, a reading of the case Regina v. Dudley and Stevenson is suggested.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i] Sec.299 – 377, Chapter XVI, Indian Penal Code, 1860.
[ii] Sec.378-462, Chapter XVII, Indian Penal Code, 1860.
[iii] Sec 6-52A, Chapter II, Indian Penal Code, 1860.
[iv] Manikirki v. Emperor, AIR 1925 Ranpenal g 121.
[v] Section 21, Indian Penal Code, 1860.
[vi] Explanation 1 & 2 of S.99, Indian Penal Code, 1860.
[vii] Kanwar singh v. Delhi Administration, AIR 1965 SC 871.
[viii] State of Uttar Pradesh v. Haripal Singh (2000) All LJ 1224.
[ix] Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577.
[x] Section 320 , Indian Penal Code, 1860.
[xi] Section 375, Indian Penal Code, 1860.
[xii] Section 377, Indian Penal Code, 1860.
[xiii] Section 359 and 362, Indian Penal Code, 1860.
[xiv] Section 340, Indian Penal Code, 1860.
[xv] Kesra Ram v State of Rajasthan, (1999) Cr LJ 1451 (SC).
[xvi] AIR 1980 SC 660,(1980) Cr LJ 459 (SC).
[xvii] Jassa Singh v State of Haryana, AIR 2002 SC 520
[xviii] Onkarnath Singh v. State of Uttar Pradesh, AIR 1988 SC 1550.
[xix] (1996) Cr LJ 878 (SC).
