Generally, the protection of a citizen’s body and their property is the state government’s duty. That’s why they introduce a body that works under the state government to protect the citizen and their property from any miss happening. Still, there are several places where police can’t be placed like schools, houses, hotels, etc.
So, for these situations law provide some rights to even citizen to use all their necessary forces to protect their body or property, even the other person’s body or his property, called the right to private defence
Under Sections 96-106 of the IPC states the laws related to the Rights of protected persons and property means the provision under this section empowers the person to “rebel force by force.”
Every citizen has the right to help himself, and the right of private defence must encourage the citizens of every free, democratic country. We have to understand one thing that the right to personal security is not applicable when there is time to have a source to get any public authority protection.
Sections 96 – 106 of the Indian Penal Code, 1860 deals with the right to private defense. Under these sections, the provision mentions that the person can use all his necessary forces to protect their life, property, or even another person’s life or property.
Section 96 of IPC states that “Nothing is an offense which is done in the exercise of the right of private defense.” but an aggressor has no right to claim the Right to Private Defence because he was the person who starts fighting. Suppose A gave a tight slap to B’s face, and in return, B started hurting A so A shot B with his gun, and later, A can’t claim the right to the private defense because, in this case, A is the aggressor who starts fighting. Similarly, if any person uses excessive force, that person also can’t enjoy the Right of Private defense. Suppose if A starts a fight with B and B answers it with some deadly force, then, in that case, B can’t enjoy the Right of Private defense.
The Burden of proof under the Right of Private defense will be on the accused himself. He has to prove that he had no other option instead of using all his reasonable forces. Ramjitham v. Basavraj and others[i], in this case, held that the right to private defense couldn’t be available to those parties who were aggressive and used guns in the fight.
Section 96 of IPC is not the complete information on the right to private defense; it is qualified in Section 99 of IPC which says that there are some places where we can’t enjoy the Right of Private defense like:-
- When any Private servant in good faith did an act.
- When a person has time to get police protection.
- When there is excessive use of force.
TYPES OF PRIVATE DEFENSE
“Every person has a Right, subject to the restriction contained in section 99, to defense-
First– His own body or the body of any other person, against any offense affecting the human body;
Second– The property, whether movable or immovable, of himself or any other person, against any act which is an act which is an offense under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass”[ii].
Section 97 says that the Right of Private Defense is of two types:-
- Right of private defense of body (own and other)
- Right to the private defense of property (own and other)
Defense of body: Section 97 provided that subject to the restriction contained in Section 99 of IPC, every person has the right to defend his own body or the body of any other person, against any offense affecting the human body. The first part of this section deals with the right to the private defense of the body.
As per English law, there must be the same kind of relationship between the persons for saving their lives, like father and son, husband and wife, brother and sister, etc. There is no such provision in Indian law as per the provision of section 97; even a stranger can defend its life.
In Reg. v. Rose[iii], the accused, a 21 years old boy, was charged for murdering his father. The accused was living with his mother and father; his father frequently used to quarrel with his mother, whom he believed to be unfaithful. On that night of the fatal incident, there was a quarrel between the accused’s father and mother. The accused father forced her to the top of the stairs and threatened to knife her. So the accused shot and killed his father to protect his mother. The accused wasn’t held liable because the act was done in Private defense.
Defence of property: – the part second of Section 97 of IPC deals with the right to the private defense of property. It clearly says that every person has to save their own or other person’s property against another person’s offense.
Similarly, here English law suggests that there must be a relation between persons for saving their property, but there is no provision mentioned in Section 97, as per Indian law, even strangers can protect the property of any other person.
A true owner can dispossess or throw out a trespasser while the trespasser is trespassing but hasn’t completed his act. But the Right of Private Defense isn’t available to the real owner when the action is completed, and the actual owner knows his success.
In Ishant Singh v. State of Rajasthan[iv], the apex court held that to invoke the right of defense to person or property, and the accused must prove that he was in a dangerous situation to protect himself, he had to use reasonable force. In this case, the accused has possession of the land one day. The other party took control of the land. There was a fight between them, one member of the other died, and several others were injured. So, in this case, a question arises that the accused had used reasonable force to protect their property.
The High Court presumes that the accused has the possession of the property, and the other party comes to take the control. They must have taken the initiative of beating, and the accused were justified in using reasonable force to protect their property.
RIGHTS AGAINST UNSOUND MIND PERSON
Generally, any unsound mind person’s offense is not considered a crime; if an unsound mind hurts you, no action would be taken against that person. But under section 98 states, “When an act, which would otherwise be a certain offense, is not that offense because of the youth, the want of maturity of understanding the unsoundness of mind or the intoxication of the person doing that act. It can be because of any misconception on the part of that person; every person has the same right of private defense against that act which he would have if the act were that offense.”
It means that the right to private defense is extended, even against an offense committed by an unsound mind person[v], or because of want of maturity[vi], or because of any misconception[vii]. If A, an insane person, attempts to kill B, A is not guilty of an offense as per Section 84 IPC, but B also has the same Right whether B is an insane person or sane as per the provision of Section 98 of IPC.
IS THE RIGHT OF PRIVATE DEFENSE AVAILABLE IN EVERY SITUATION?
The right to private defense is not available in every situation. There are many situations where we can’t enjoy the freedom to private defense, defined in Section 99 of IPC. It states that “There is no right of private defense against an act which does not reasonably cause the apprehension of death or grievous hurt. If done, or attempted to be done by a public servant acting in good faith under his office’s color, though that act may not be strictly justifiable by law.”
There is no right of private defense against an act that does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under his office’s color. However, that direction may not be strictly justifiable by law. There is no right of private defense in cases where there is time to have recourse to public authorities’ protection.
The extent to which the right may be exercised: The right of private defense in no case extends to the inflicting of more harm than it is necessary to impose for defense.
Explanation 1.—a person is not deprived of the right of private defense against an act done, or attempted to be done, by a public servant, unless he knows or has reason to believe that the person doing the act is such a public servant.
Explanation 2.—a person is not deprived of the right of private defense against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe. The person doing the act is acting in 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.
The provision of this section deals with conditions and limits within which a person can be exercised his right to private defense. It gives a defensive right, not an offensive right.
The first two clauses of this section say that the Right of Private defense can’t be invoked against a public servant, or the person acting in good faith in the exercise of his legal duty provides that the act is not illegal. Similarly, the third clause restricts that if a person has time to get the protection of any public authority, then, in that case, he can’t take the plea of right to private defense. In an austere word, there is no right to private defense in the following circumstances:-
- When a private defense is exercised against the action of a public servant in good faith.
- When a private defense is exercised against the act done by any public authority or under their directions.
- Where it is sufficient time to take the protection of any public authority.
- A person should use one reasonable force; if he exercises that if he can’t plead.
WHAT HAPPENS IF A PERSON EXTENDS THE RIGHT TO PRIVATE DEFENSE AND CAUSE DEATH?
Section 100 of IPC deals with this provision of The Right of private defence that the right to private defense of the body extends to death. It states, “The Right of private defense of the body extends, under restrictions mentioned in the last preceding section, to the voluntary causing of death or any other harm to the assailant, if the offense which occasions the exercise of the right be of any of the descriptions after this enumerated, namely:—
(Firstly)— 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 to commit rape;
(Fourthly)—An assault to gratifying unnatural lust;
(Fifthly)— An assault to kidnap or abduct;
(Sixthly)— An assault to wrongfully confine a person, under circumstances that may reasonably cause him to apprehend that he will not have recourse to the public authorities for his release.
(Seventhly)– An act of throwing or administering acid or an attempt to throw or assist acid, which may reasonably cause the apprehensive that previous hurt will otherwise be the consequences of such that.”
It means that the provision of this section mentions that killing or causing hurt to the assailant under the restriction mention in the last preceding Section 99 if the offence which says in clauses 1-7 of Section 100 of IPC, namely as-
- Causing the fear of death;
- Causing the fear of grievous hurt;
- The intention of committing rape;
- The Intention of satisfying of unnatural lust;
- The Intention of Kidnapping or abducting;
- When the person has no time for getting any protection of any public authority;
- Acid throwing.
In Arun v. State of Maharashtra[viii], the Supreme Court held that Death under The right to private defense is available only if the accused shows that circumstances giving rise to the reasonable ground causes the fear of either death or grievous hurt.
In Somnath Das, State of Orissa[ix], the accused and deceased were cousins, but they never fought with each other. One day a free fight took place between them; eventually, the accused was charged with the murder of the deceased. The court held that the dead had done nothing, which causes reasonable apprehension in the accused’s mind that he might be killing him or cause some grievous hurt if he had not exercised his right to private defense.
Death in case of protection of the body (either own or another person) is acceptable. Still, is this provision adequate in a matter of protection of property (either own or another person)? Yes, Section 103 of IPC deals with the protection of the property causing death, which states that death in case of protecting the property is acceptable in the following circumstances:-
- House-breaking by night;
- Mischief by fire committing on any building;
- Theft, mischief, house-trespass, under such circumstances, as may reasonably cause fear of death.
Section 102 of IPC deals with the time of starting and ending of the right to private defense means the right to private defense begins when the person the reasonable apprehension of danger of the body arises from an attempt or threat to commit an offense. It continues as long as the fear of anticipation of the risk continues. In Ram Narain v. State of Uttar Pradesh[x], in this case, the two parties were claiming their possession over a mango tree standing in the open land. The accused wanted to cut the tree, whereas the deceased wished to protect the tree. A free fight took place between parties, resulting in the death of one person who wanted to preserve the tree and the injury of many members from both the groups. The case went in the trial court, it was held that the act was done in private defense, but the High Court, on the appeal of the acquitted and convicted them of the offense under various IPC sections. The Supreme Court rejected the appeal because the accused had inflicted several wounds.
Similarly, in property protection, there are also some time restrictions mentioned in Section 105 of IPC, which states that the right of private defence of property commences when a reasonable apprehension of causing harm.
The right to private defence of property against theft starts when someone enters your property and continues until the offender has affected his retreat.
The right to private defence continues in a robbery as long as the offender causes or attempts to harm or fear death.
EVOLUTION OF THE RIGHT OF PRIVATE DEFENSE
In Roman law, homicide means the act of killing someone. There were two degrees of Criminal homicide, i.e., murder and manslaughter, and there were two degrees of homicide where they didn’t impose any type of punishment, i.e., justifiable and excusable. Later the name of private defence was placed in the category of justifiable homicide. It was introduced with the maxim called “Vim enim vi defendere omnes leges emniaque jure permittunt” which means- A person can’t be liable if he kills another person who attacks him[xi]. That’s how it is introduced under Roman law.
In English Law, there was a rule of absolute liability for every homicide; there was no excuse even if the act is done in the name of self-defence. But in the Medieval period, the pardon theory was introduced. It is excusable in the modern age that if a homicide is committed in private defence, it is justifiable.
LEADING CASES OF PRIVATE DEFENCE
In the case of Nand Kishor Lal [xii], the accused, who was Sikhs, married a Muslim woman and converted her into Sikhism. Nearly after a year, the woman’s husband’s relatives demanded her return from the accused, but the woman herself refused to rejoin the Muslim husband again. A free fight took place between the accused and the woman’s relatives. The husband’s relative attempted to take her back, and the accused resisted the attempt, which resulted in the death of one member of the woman’s relatives. It was held that the act was done in protecting the woman against her assailants, extended under this section to causing death. So they had not committed the offence.
In Ram Narain v. State of Uttar Pradesh[xiii], the Supreme Court held that the right to private defence is a “Preventing and not a Punitive right.” After the injuries, if there is no fear of causing death or any grievous hurt, there is no Private defence.
In Amjad Khan v. State[xiv], the Supreme Court held that Sections 102 and 105 of IPC deals with the commencement or end of the Right of Private defence against body or property. In both cases, the right to private defence commences at the time of apprehension of danger to the human body or property. It doesn’t mean that the person should wait until his property or another person’s property is looted.
In the State of Haryana v. Sher singh[xv], the accused was armed with a weapon. Balas and lathis come to take forcible possession on the land, and cattle bought by them were let loose in the field, resulting in damage to the standing crops. Then the deceased with his four members went to the site, and then a free fight took place between them, which resulted in the death of one member and injury to several members of both the groups. Both trial and the High Court observed that the accused wasn’t held liable because it is done in private property defence. But the Supreme Court held that the accused over the use of his powers so he can’t claim immunity under the garb of Section 97 of the IPC. So, he was held liable for the act and awarded 5-year imprisonment.
Further, in State of Orissa v. Nirupama Pandey [xvi], the victim entered the accused house and tried to Rape her, than in protecting their body, the accused lady stabbed the ma, and he died. It was held that the accused wasn’t held liable because the act was done in private defence of the body.
It is clear that this right doesn’t mean to sit like a “dumb person”; this right walks on the theory of “Tit for Tat.” The government provides all his reasonable force to protect both the body and the property, either yours or another. Still, it is essential to use only reasonable force; if you use excessive force, you can’t enjoy the right of private defence or are punished with fines or short-term imprisonment.
Most countries have accepted the provision of the right to private defence. Many people use this as a weapon for harassing others or taking revenge. But we have to understand that law empowers the rebel forces not to use it as revenge.
Therefore, we should keep all the ingredients in our minds not to misuse it and not become a weapon for taking law.
[i] 2012 (76) ACC 245.
[ii] Indian Penal Code, 1860, s.97.
[iii] (1884) 15 Cox CC 540.
[iv] 1973 Cr 811.
[v] Indian Penal Code, 1860, s.84.
[vi] Indian Penal Code, 1860, ss. 82,83.
[vii] Indian Penal Code, 1860, ss. 76, 79.
[viii] (1977) 15 MHLJ 315.
[ix] AIR 1969 Ori 138.
[x] (1973) Cr LJ 29.
[xii] (1924) 25 Cr Lj 670.
[xiii] AIR 1973 SC 473.
[xiv] AIR 1952 SC 165.
[xv] (2002) 9 SCC 356.
[xvi](2006) 1 SCC 479.
BY- Shivansh Bansal | Teerthanker Mahavir University