Of The Right Of Private Defence – Notes

rights-of-private-defence

Law experts opine that if he is attacked or his property is being damaged by someone he should defend and protect his property which is known as private defence. It by doing so any person is caused damage, the law provides protection to such person who caused damage in defending or protecting himself or respectively. The provision in this regard is given under Section 96-106 of IPC where the lawmaker has used the term private defence instead of private-defence.

Section 96: Things are done in private defence under IPC – Nothing is an offence which is done in the exercise of the right of private defence under IPC.

Section 97: Right of private defence under IPC of the body and of property – Every person has a right, subject to the restrictions contained in section 99, to defend.



Thus, Section 97 provides the right to private defence in the following two circumstances:-

  1. Right of private defence against the offence affecting the human body.
  2. Right of private defence against the property.

Right of private defence of the body – section 97(i) of IPC provides right against the offence affecting the human body of his own or any other person. Thus, every person has the right that if any person commits an offence against him or against any other person he can use force to protect. By doing so if murder is caused, the same will be protected under the section provided it was caused for controlling the situation section 100 and 103.

ROZ (1884) 16 LAXYA 40: In the matter of private defence this is an important case. In this case, a person was cutting the neck of his wife, when his son saw this he killed his father. Held that the boy in good faith believed that for protection of his mother it was necessary to murder father hence his act was to be protected under the provision of section97(i).

YOGENDRA MARARJI V/S GUJARAT STATE- AIR 1980 S.C.

The principle laid down in the case are-

  1. The right can be used in the situation when there is actual and immediate danger of body.
  2. The right can be used under the restrictions given in section 99. Meaning thereby that there no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
  3. This is a right of defence, not the right to take revenge.
  4. In using right, causing death can be justified if happened under section 100&103.
  5. The right can be used against the offence described in IPC.

An assaulter cannot claim for the right:- The person who himself attacks someone cannot take the plea of right of private defence.

Held by the court- accused has not rightly exercised the right as it could be available only when accused may prove that he in defence of himself or father’s caused the death of the deceased.



AKONTI BORA V/S STATE 1980 CR. L.J. GOHATI H.C. Has made clear that while using the right of private defence against offence against property one has right to evict the trespasser and to throw all that things which had been used by the trespasser while trespassing.

Section 98: Right of private defence against the act of a person of unsound mind, etc- When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the party of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

Thus, if a person is attacked by such person:-

  1. By a person/boy for want of understanding.
  2. Is of unsoundness of mind.

Then every person has the same right of private defence against that act which he would have if the act were that offence.

ILLUSTRATION:

  1. 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 same.

Thus, it is clear through the act of a person of unsound mind, intoxicated or immature not pertains under the definition of the offence, but the victim has the right to private defence does not make any difference between the defendant has the equal right of private defence.

Section 100: When the right of private defence of the body extends to causing death – The right of private defence of the body extends, under the restriction 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 them to be of any of the descriptions hereinafter 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 reasonable cause the apprehension that grievous hurt will otherwise be the consequence of such assault:

Thirdly – an assault with the consequence of such assault:

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 wrongful con confining a person, under circumstances which may reasonably be caused him to apprehend that he will be unable to have recourse to the public authorities for his release.



Thus, section 100 in the following six conditions, one can cause death in exercising his right of private defence.

  1. When there is the apprehension of death due to assault.
  2. In apprehension of grievous hurt due to assault
  3. Assault with the intention of rape
  4. Against assault gratifying unnatural lust
  5. Against assault with the intention of kidnapping or abduction.
  6. Against the assault of wrongful confinement with the apprehension that victim will unable to have recourse to the public authorities for release.
  7. Death or grievous hurt – section 100(i) and (ii) give the right to the victim that he can cause even death in the circumstances given.

NAVIA BAI V/S STATES OF M.P. AIR 1992 S.C – The accused was a lady. The deceased assaulted her with a knife; the lady also attacked the accused with a knife which resulted in death. Decided lady is protected under section 100.

SMT. VIDYASARM SHARMA V/S SUDARSHAN LAL 1993 CR. L.J – Accused and deceased were in the club. The deceased was intoxication and had beaten the accused as well which resulted in the hurt of the accused. The accused in self-defence attacked on the neck of the deceased which caused the death of the deceased.

But here it is pertinent to mention that under the right one can be caused death only if:-

  1. The attacker is not accused.
  2. The apprehension of death or grievous hurt
  • Such apprehension is immediate and reasonable.
  1. The accused has no recourse of another defence.

  It is further to mention that the accused will not have the right of private defence whose death of deceased has been caused at his business piece. In this context, the following case is decided-

 

DEVI LAL V/S STATE OF RAJASTHAN 2002 S.C. – The accused on the basis of normal hurt can not take the plea of private defence.

  1. RAPE AND UNNATURAL LUST 100 (3) & (4) – If any woman is attacked for the purpose of rape or with the intention of unnatural lust by a person, such lay or man can cause the death of the attacker. State of Orissa v/s. Nirupama Pandey 1989 – A lady was attacked with the intention of rape. In defence, she commits murder with a knife. Decided she is protected under section 100(3).

  But, if the death is caused after realizing such apprehension the section will not protect.

GURIA BUCHHA V/S STATE OF GUJARAT AIR 1962 The attacker assaulted the accused of unnatural lust. The accused in defence started hurting the attacker. The attacker falls down, but accused continued beating till the death of the attacker. The decided victim is not benefitted by 100(4) as apprehension of unnatural lust came to an end at the moment the attacker fell down.

  1. KIDNAPPING AND ABDUCTION:- Section 100(5) – with the intention of kidnapping or abduction if the assault is done, the victim can cause the death of the attacker.

 PUBLIC PROSECUTOR H.C V/S BAL KRISHNA 1978 CR. L.J. AP – The accused taken the meal in a hotel and went away without making payment of the bill. Hotel servants followed him and seized to recover the hotel servant and taken the plea of section 100(5).

Decided not to be benefitted his deed does not fall within the meaning of section 362 i.e. abduction.

  • WRONGFUL CONFINEMENT:- SECTION 100(6) – When the assault is done intentionally of wrongful confinement, the victim can the death of the attacker.
  1. A person is assaulted.
  2. Done intending to wrongful confinement.
  • Wrongful confinement is of such nature that the accused has no time to take help of authorities.
  1. Such apprehension is immediate and reasonable; the death can be caused by the victim.

ABDUL HABIB V/S STATE 1974 CR. L.J. – ‘A’ arrested ‘B’ and was carrying him to the police station, he was neither having any arm nor intend to cause hurt to ‘B’ held accused has no excuse of private defence as if assistance of authorities can be taken, section 100(6) will not apply.

Section 101: when such right extends to causing any harm other than death – If the offence be not of any of the description enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.

Section 102: Commencement and continuance of the right of private defence of the body – The right of private defence of the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed: and it continues as long as such apprehension of danger to the body continues.

Section 106: Right of private defence against deadly when there is risk of harm to innocent person – If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defence be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of the risk.



Ingredient – thus, a person in exercising the right to privacy can cause the death of an innocent if-

  • Against an assault
  • Which reasonably causes the apprehension of death?
  • The danger is immediate and reasonable
  • The defender is in the situation that he cannot defend himself without risk of harm to an innocent person.

ILLUSTRATION – A is attacked by a mob who attempts 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.

RIGHT OF PRIVATE DEFENCE OF PROPERTY

Section 97(2): this section provides the right of private defence against the crime of theft, robbery, and mischief or criminal trespasses for self as well as for another person.

Thus, in following offences or attempt to commit the right of private defence is available

  1. Theft
  2. Robbery
    • Mischief
  1. Criminal trespasses

Thus, if the possession of the land of any person is being taken by someone he has the right to private defence. The right of private defence of property can only exist in favour of the person who possesses a clear title to that property.

SHIVLAL 1933 ALL – In this case, Wallis went to attach the property of accused after the expiry of warrant. The accused opposed and caused hurt to the wall. Court did not accept the peal of private defence.

Section 103: When the right of private defence of property extends to causing death – The right of private defence of property extends, under the restriction mentioned in section 99, to the voluntary causing of death or of any other harm to the wrongdoer, 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, 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 of such right of private defence is not exercised. Meaning thereby that the section consists of following ingredients which in right to private defence of property, death can be caused:-

  1. Loot, Robbery
  2. Housebreaking by night
    • Mischief by fine
  1. Such theft, mischief or house-trespass which cause apprehension of death or grievous hurt.



JASSA SINGH V/S STATE OF HARYANA AIR 2002 – Right to private defence under section 103 exceeds to cause death if a crime has been committed. Trespass in open and does not give right of private defence.

  1. ROBBERY 103(i) the element of valence is essential in robbery for taking the benefit of the section. As by this element, these may be a danger to body or property. The section authorizes victim for causing death if apprehension of body and property of himself or others are there. Though dacoits have not been mentioned, for the protection of property causing of death of dacoit is also permissible for the victim as dacoits are the vast style of the loot.

RAM PRASAD V/S EMPEROR 1919 PATNA

  1. Housebreaking by night: section 103(2) – In this offence death can be caused by the person causing the offence provided –
  • Housebreaking has been done in the night
  • There may be the apprehension of violence

For exercising the right it is not necessary that the act of housebreaking is completed the only attempt to housebreaking by night is sufficient.

QUEEN V/S GURUWACHAN SINGH 13 WR – A person was committing theft in the night by housebreaking and he was caught and killed by the family members.

The decided killing of the thief was beyond the power vested in a person under the provision of IPC of right to private defence. The definition of housebreaking by night is given under section 446 of IPC.

 THEFT, MISCHIEF BY FIREHOUSE TRESPASS – SECTION 103 (3)

If in any tent which is used for residence or keeping goods in it is damaged by any person by kindling fire, the victim or the person noticing the incident can cause the death of criminals. Mischief is defined under section 425 of IPC.

THIEF, MISCHIEF, HOUSE TRESPASS – SECTION 103 (4)

When any mischief or house-trespass has been done in the situation that victim may compel to think that if he does not exercise his right of private defence, he will either be in danger of life or will have grievous hurt then such victim will cause the death of doer.




GURUDATHAMAL V/S STATE AIR 1965 S.C. – Some armless persons were cutting their crops under police protection. Suddenly accuse reached there with guns and dangerous weapons. The removed the police first and thereafter committed the crime like loot or theft, hence accused were not benefitted by right of private defence.

Section 104: When such right extends to causing any harm other than death – If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but, does extends, subject to the restriction mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other than death.

Meaning thereby that under the right to private defence in relation to property, the exercise of power is permissible to the extent it is required and not in excess otherwise it would be considered as crossing the limit and defence would not be permissible.

Section 105: Commencement and continuance of the right of private defence of property continues as long as the apprehension of danger of crime is there.

EXCEPTIONS OF RIGHT OF PRIVATE DEFENCE – SECTION 99

The Exceptions are given in section 99 as the right is exercised under the restriction givens in section 99. Acts against which there is no right of private defence:-

Section 99: Acts against which there is no right of 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.

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.

The 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.

Section 99 describes the following exceptions:-

  1. An act was done by the public servant in good faith.
  2. An act is done under the direction of a public servant in good faith.
  3. Where there is no time to seek the help of public authorities.
  4. Inflicting of more harm than it was necessary for the purpose of defence.
  • An act, done by a public servant in good faith – section 99(i) – if the act is done by the public servant –
  • In good faith
  • In his official capacity
  • Without the apprehension of death or of grievous, against such act right of private defence is not available.

UTTAR PRADESH V/S. NIYAMATH AND OTHERS AIR 1987 S.C.

ROZ (1884) 16 LAXYA 540: In the matter of private defence this is an important case. In this case, a person was cutting the neck of his wife, when his son saw this he killed his father. Held that the boy in good faith believed that for protection of his mother it was necessary to murder father hence his act was to be protected under the provision of section 97(i).

Thus, if public servant knowing do any act beyond his jurisdiction then section 99 will not invoke.

RAJNI LAL V/S RAJ 1990 CR. L.J. – In the night some policemen went to a village with the intention to seize a lady. The village was not under the jurisdiction of that police station where these police personnel were posted. On opposing by villagers, the police fired with the gun. The court did not give the protection of section 99.

Explanation 1 – Of section 99 makes clear that a person is not deprived of the right of private defence unless

  • He knows or
  • Or has reason to believe
  • That the person doing the act is such public servant.

Explanation 2 – the right of private defence is not available where any action is done in the direction of the public servant. It is not necessary that a person doing activities in the direction of a public servant also a public servant.

RECOURSE TO THE PUBLIC PROTECTION OF THE PUBLIC AUTHORITIES:- The right of private defence is not given where there is sufficient time to have reason to the protection of public authorities because law presumes that if any danger has arisen to anybody and he has time to have the help of public authority, he should instead of getting rid of that danger, seek the help of available public authority.

Suggestion: Punishment Under IPC

            

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