PRIVATE DEFENCE

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12 months ago

PRIVATE DEFENCE

Table of Contents

PREFACE

In the present society the defence of a person and property of every person thereof is the responsibility of the state.

From section 96 to 106 in Indian Penal Code states the law relating to the right of private defence of person and property-

Body may be one’s own body or the body of another person and likewise property may be movable or immovable and may be of oneself or of any other person. Self-help is the first rule of criminal law. The right of private defence is absolutely 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 is minutely regulated by law. The use of force to protect one’s property and person is called the right of private defence.

Section 96- Things done in private defence;

Nothing is an offence which is done in the exercise of the right of private defence.

Thangavel case: “society places a check on the struggle for existence where the motive of self-preservation would dictate a definite aggression on an innocent person”.

Section 97- Right of private defence of body and of property

Every person has a right, subject to the restrictions contained in section 99 to defend-

First- his own body and the body of any other person against any offence affecting the human body.
Secondly- the property, whether movable or immovable, of himself or of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass.

Section 98- Right of private defence against the act of a person of unsound mind, etc

For better understanding have a look on Illustration;

Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

Section 99- Act against which there is no right to private defence.

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.

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.

Section 100- Clearly shows that when the right of private defence of the body extends to causing death.

If the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely-

Firstly, the apprehension that death will otherwise be the consequence of such assault;
Secondly, grievous hurt will otherwise be the consequence of such assault;
Thirdly, intention of committing rape;
Fourthly, intention of gratifying unnatural lust;
Fifthly, kidnapping or abducting;
Sixthly, reasonably cause him to apprehend and he is unable to recourse to the public authorities for his release;

Seventhly, Act of throwing acid or attempt, which reasonably cause grievous hurt.

Section 101- When such right extends to causing any harm other than death

Section 102- Commencement and continuance of the right of private defence of the body

Section 103- When the right of private defence of property extends to causing death

Section 104- when such right extends to causing any harm other than death

Subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death.

Section 105- Commencement and continuance of the right of private defence of property

Section 106- Right of private defence against deadly assault when there is risk of harm to innocent person

Illustration-

A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.

CONCLUSION

To justify the exercise of this right the following are to be examined:-