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Right of private defence

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Right of private defence

Author: Lagan Singh, New Law College, Bharati Vidyapeeth, Pune (Maharashtra)

Abstract 

The right of private defence is one of the general exceptions. General exceptions are covered under sections 76 to 106, chapter four, of the Indian Penal Code of 1860. General exceptions are used for escaping criminal liability but it does not imply that they are wrong or illegal in any sense. In this article the right of private defence will be explained, it comes under sections 96 to 106 of the Indian Penal Code. Right of private defence means protecting the body and property of oneself and the body and property of another from a person who is doing such an act that is causing reasonable apprehension of death or grievous hurt, now there are some exceptions to it too which will be discussed later. As a law student, I feel it is the second most important topic of the Indian Penal Code, after murder. Protecting ourselves and our property is of utmost importance, even if we kill someone as a consequence of protecting our body and property but there is a catch that is a reasonable apprehension of death and grievous hurt should be present, this is given because if it was not given then a normal person could have killed someone out of little anger, hatred and vengeance against that person and could have used this right to protect himself from criminal liability. There are various case laws to understand this topic, they will be discussed later. As mentioned above, the right of private defence is given under sections 96 to 106, here is a list of these sections:-

These were all the sections, in which the right of private defence is covered.

Section 96

Section 96 of the Indian Penal Code talks about things done in private defence, it simply states that nothing is an offense that is done in the exercise of the right of private defence. This section need not be studied any deeper because there is nothing more in it, it is like an introduction, and it is short and gives an idea about private defence.

Section 97

This section is where the right of private defence starts, this section talks about the right of private defence of the body and property. It is divided into two parts:-

  1. Every person has the right to defend his own body and the body of another against any harm affecting the body being defended.
  2. Every person has the right to defend his property and the property of another against theft, robbery, mischief, and criminal trespass. Property can be movable and immovable. 

The term movable property is defined under section 22 of the IPC, which says, that any corporeal property except things attach to earth, things permanently fasten to attach to earth and land. The term immovable property is given under section 3 of the Transfer of Property Act, of 1882 but it does not talk about what immovable property includes, it is given under section 3 of the General Clauses Act, of 1847, it says, the immovable property includes land, benefits arising out of it and anything which is permanently fastened to attach to the earth.

After reading this it is quite clear that a person can protect his own body and property as well as the body and property of others but there must be reasonable harm against the body and property of a person and of the person whose body and property is being defended by the other.

Section 98

This section of the IPC gives the right to use private defence against a person who is of unsound mind. A person who is incapable of understanding things that a normal person can understand, who does not have enough maturity, who has been intoxicated and not in his senses then such person is considered as a person of unsound mind. If such a person inflicts any harm or does any act due to which reasonable apprehension of death and grievous hurt is caused then the person on whom such harm is inflicted then he has the right to defend himself and can even cause death in defending himself. However, it might not be an offense on the part of the person who has inflicted such harm due to unsoundness of mind. In simple terms, a person has the right of private defence against an unsound-minded person same as any sound-minded person. There are some categories against which a person can use private defence same as against any normal person, these are:-

Section 99

Section 99 of the Indian Penal Code, 1860, talks about the acts against which there is no right of private defence, before that, it also says that the right of private defence extends to inflict that much harm which is necessary to be inflicted and no more than that. It depends on the circumstances of the situation and how much harm shall be inflicted. Now let’s talk about the acts against which the right of private defence does not exist, these acts are:-

Section 100

This section of the IPC talks about the acts in which the right of private defence of the body can extend to cause death. Private defense does not necessarily mean killing someone to protect ourselves, it means protecting ourselves by inflicting necessary and required harm on the attacker according to the circumstances of the situation but there are some cases in which it becomes necessary to cause death because these acts are so much heinous that the person on whom the harm has been inflicted has no other choice than to cause death. These sections of the IPC, regarding private defence, are made after a lot of observation, minute details are covered in these sections and this section, in particular, has been made with due care, acts on which the right of private defence extends to causing death are:-

Section 101

This section discusses when the right of private defence of the body extends to causing any harm other than death. A person is not allowed to cause death in the name of private defence unless any of the harm is mentioned above in section 100 of the IPC. A person can cause any other harm than death to protect himself as well as the body of another.

Section 102

This section of the IPC says that when there is a reasonable apprehension of danger to the body arise then the right of private defence of the body commences and it continues till such danger continues, it ends when such danger ends.

Section 103

This section of the IPC talks about, when the right to private defence of property extends to causing death, just as offenses mentioned in section 100, are heinous so are the offenses that will be mentioned here in this section but these are regarding property, these are:-

Section 104

This section talks about when the right of private defence of property extends to causing any other harm than death. As already stated no person can kill in the name of private defence except in some exceptional circumstances. Still, a person can inflict any harm other than death if there is any other act mentioned in section 103 of the IPC.

Section 105

This section of IPC talks about the commencement and continuance of the right to private defence of property. It commences when there is a reasonable apprehension of danger to the property commences. Its continuance is divided into four categories, which are:-

  1. Theft – In case of theft, it continues till the property has been recovered, the retreat has been effected or help from public authorities is obtained.
  2. Robbery – It continues till the attacker causes or attempts to cause death, wrongful restraint, or hurt or it continues till there is fear of instant death, hurt, and restraint.
  3. Criminal trespass or mischief – It continues as long as the offender continues the commission of criminal trespass or mischief.
  4. House breaking by night – It continues till the trespass by such breaking continues.

Section 106

This section talks about the right of private defence against a deadly assault when there is a risk of harming an innocent person. If a person is situated in a place say a mob, which is using deadly assault against him and there is a reasonable apprehension of death in his mind then he can use private defence even if he causes harm to any innocent person as there remains no other way to save himself except using private defence with a risk to harm any innocent person.

Case laws 

In this case, it was said that to use the right of private defence clear and apparent necessity must be present. This has been very well pointed out in this case as necessity is the main ingredient of the right of private defence, let’s say if necessity was not important in this right then a person could have used this right to inflict harm on others and could have escaped from liability using the right of private defence given that there was no necessity or enough circumstances to use this right.

In this case, it was held that the right of private defence is not available to the initial aggressor. Indeed, it shall not be available to the person who has started an act to which the other one has to protect himself and out of this he used this right of private defence, the person against whom this right has been used and he after that also hit the other one and injured him, cannot say that he was using private defence because he is the one who started the fight.

In this case, the court said that there must be reasonable apprehension of death and grievous hurt in the mind of the person who is using the right of private defence. If it was not one of the elements of private defence then any person would have used this right in the slightest fights in which there is no chance that reasonable apprehension of death and grievous hurt could occur.

It is a landmark case in the history of India, it covers many things like murder, culpable homicide, and private defence. Nanavati murdered the man who was having an affair with his wife, the defence lawyers were saying that Nanavati went to his house to ask him if he would marry Nanavati’s wife and will take care of his children and during this conversation a spat between them took place and Nana killed him as a consequence of using the right of private defence. It was a pre-planned murder by Nanavati because there was no spat between the two, it was confirmed by the house servant that Nanavati went to the room, four shots were heard, he came out and all this happened within 60 seconds, a fight was not possible in this much time so there is no way that Nanavati used private defence.

Conclusion 

The right of private defence is very well written and observed by our lawmakers. The main ingredients of this right are a reasonable apprehension of death and grievous hurt and absolute necessity. This right is to protect the body and property of oneself and the body and property of another, as it is covered from sections 96 to 106, every aspect is covered like in what circumstances it should reach to the extent of causing death and in what circumstances it should not. A person who uses this right shall be in a situation where he cannot reach out for the help of public authorities and there is an absolute necessity to use this right otherwise he will not be saved which means there is a reasonable apprehension of death and grievous hurt.

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