The concept of right to private defence is based on the principle that when a person is faced with imminent danger, he is not expected to run away from the danger, rather it is his inherent right to protect himself from the danger. For this purpose use of reasonable force to repel the danger is allowed. Right to private defence is absolutely necessary for the purpose of protection of one’s life, liberty and property. Supreme Court in James Martin v. State of Kerala, (2004) 2 SCC 203 held that self-preservation is the prime instinct of every human being and this is the cardinal principle on which the right of private defence is based. It is the duty of the State to protect the life and property of individual. However, there may be a situation wherein help from State authorities cannot be obtained immediately. In such situations law give the right of private defence of body and property to every individual. Supreme Court in Jagdish v. State of Rajasthan, AIR 1979 SC 1010 laid down the following propositions with respect to right of private defence:-
It is essentially a defensive right circumscribed by Indian Penal Code. It is available only when the circumstances justify. It is not available on pretext of vindictive and retributive purposes. Under Section 105 of Indian Evidence Act, the burden of proof is on the accused to prove the existence of right of private defence. This burden stands discharged by proving preponderance of probabilities in favour of the plea.
The accused must satisfy the court that the harm caused by the accused was necessary for warding
off the attack. In Sukumaran v. State, (2019) 15 SCC 117 Supreme Court held that a mere reasonable apprehension is enough to put the right of self defence into operation. It is not necessary that there should be actual commission of the offence in order to give the right to private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right to private defence is not exercised. It must be noted that right of private defence is a preventive right and not a punitive right. Only that force is to be used as is necessary to avoid the danger. The right cannot be based on surmises and speculations. Sections 96 to 106 provide the entire law relating to right of private defence of person and property including the extent of and limitation to exercise of such right.
Section 96 is a general declaration of the right and provides that nothing is an offence which is done in the exercise of the right of private defence. The phraseology of this section clearly indicate that the right of private defence is a defensive right and it is available when the circumstances clearly justify it. Supreme Court
in Deo Narain v. State of Uttar Pradesh, AIR 1973 SC 473 held that right of private defence is used to repel the unlawful agression and not to punish the aggressor. In Mano Dutt v. State of Uttar Pradesh, (2012) 4 SCC 79 Supreme Court held that a person is not entitled to use violence disproportionate to the injuries which is to be averted. Section 97 provides that every person has a right, subject to the restrictions contained in Section 99, to defend-
Firstly-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 of theft, robbery, mischief or criminal trespass, or which is an attempt to commit
theft, robbery, mischief or criminal trespass.
In order to exercise right of private defence there must be an offence committed against the person or depend upon the actual injury caused property. However, the question of right of private defence does not create the right can be exercised if there is a reasonable apprehension of the injury. Right of private defence extends not only to the defence of one’s own body and property but also to the body and property of any other person. Therefore, a stranger can defend the body and person of another person and vice versa. In English law, some kind of relationship should exist in order to exercise the right of private defence.
Right not available against agressors
Right to private defence presupposes attack or agression by the person against whom the right is claimed. This right is available against an offence, therefore, where an act is done in exercise of the right of private defence, such act cannot give rise to any right of private defence in favour of the aggressor in return. Supreme Court in Bhanwar Singh v. State of Madhya Pradesh, AIR 2009 SC 768 held that no agressor can claim the right of private defence. In State of Uttar Pradesh v. Ram Swarup, AIR 1974 SC 1570 Supreme Court held that right of private defence is not a right of retribution. It cannot be used as a shield to justify agression.
Free fight
A free fight is a fight when two individuals fight using unlawful force against each other. Supreme Court in Onkarnath Singh v. State of Uttar Pradesh, AIR 1974 SC 1550 held that in free fight both parties are aggressors and and none of them is entitled to claim the right of private defence. The test for determining whether a fight is a free fight or not is to see whether the parties voluntarily entered into fight with mutual intent to harm each other. In free fight each individual is responsible for his own acts.
Plea of private defence
Supreme Court in Moti Singh v. State of Maharashtra, (2002) 9 SCC 494 held that person cannot be denied of the benefit of the right of private defence merely because he failed to plead it, if the evidence adduced by the prosecution indicates the he was put under a situation where he could reasonably have apprehended danger to his body. In Raj Pal v. State of Haryana, (2006) 9 SCC 678 Supreme Court held that the plea of right of private defence need not to be proved beyond reasonable doubt. It is enough if it establishes facts which on the test of preponderance of probabilities make defence acceptable.
Right of private defence against the act of a person of unsound mind, etc.
Section 98 provides that when an act, which would otherwise be a certain offence, is not that offence, by reason of
- youth; or
- want of maturity of understanding; or
- unsoundness of mind; or
- intoxication of the person doing that act; or
on the - by reason of any misconception
part of that person, every person has the same right ofprivate defence against that act which he would have if the act were that offence.
For example, ‘2’, 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. In another example, “A’ enters by night a house which he is legally entitled to enter. ‘Z’ in good faith, taking ‘A’ for a house-breaker, attacks ‘A’. Here ‘Z’, by attacking ‘A’ under this misconception, commits no offence. But ‘A’ has the same right of private defence against ‘Z’, which he would have if ‘Z’ were not acting under that misconception.
Limitations of right of private defence
Section 99 lays down the conditions and limits within which the right of private defence can be
exercised. Section 97, discussed above, is subject to Section 99. The essence of this section is that the right of
private defence is a defensive right and not an offensive right. The limitations on right of private defence
can be categorized into the following:-
Acts of public servant
Section 99 provides that 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. The object behind imposing limitation on right of private defence vis-à-vis acts of public servant or acts on directions of public servant is that the public servants act in accordance with law for the benefit of public in general and therefore, protection of public servants is necessary.
According to 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.
According to 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.
In order to avail the benefit of this restriction following are to be proved:-
- The act done or attempted to be done by a public servant must be done in good faith.
- The act must be done in the colour of office.
- There must be reasonable ground for believing that the acts were done by the public servant as
such or under his authority in exercise of his legal duty and the act is not illegal.
Recourse to public authorities
There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities. As stated above, it is the primary duty of the State authorities to protect the person and property of individuals. Only in cases where the State authorities cannot be reached, the right of private defence comes into picture. No person has right to take law in his own hands for protection of person or property if there is reasonable opportunity to have access to public authorities.
Extent of exercise of right
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. The measure of self-defence must always be proportionate to the quantum of force used by the attacker and which it is necessary to repel. In George Dominic Varkey v. State of Kerala, AIR 1971 SC 1208 Supreme Court held that the question whether the right of private defence exercised by an accused is in excess of his right and whether the accused has caused more harm than necessary is entirely a question of fact to be decided upon the circumstances of the case.
When the right of private defence of the body extends to causing death Section 100 provides that the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant in the following circumstances-
(1) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
(2) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(3) An assault with the intention of committing rape;
(4) An assault with the intention of gratifying unnatural lust; die
(5) An assault with the intention of kidnapping or abducting;
(6) An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
(7) An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
The right mentioned in this section is subject to restrictions given in Section 99.
Supreme Court in Arjun v. State of Maharashtra, AIR 2012 SC 2181 held that in order to avail benefits of clauses (1) and (2) it is to be shown that there were circumstances giving rise to reasonable grounds for apprehending death or grievous hurt would be caused to him. Section 101 is a corollary to Section 100. It provides that if any of the circumstances enumerated under Section 100 does not exists the right of private defence of body does not extend to causing of death of the attacker but the defender is entitled, subject to the restrictions of Section 99, to voluntarily cause to him any other harm other than death.
Section 102 provides that the right to private defence the body commences as soon as reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger to the body continues. A person cannot get the benefit of Section 102 if he continues to attack even when the
apprehension of danger is no more present [State of Uttar Pradesh v. Ram Swarup, AIR 1974 SC 1570].
When the right of private defence of property extends to causing death
Section 103 provides that the right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong-doer in the following circumstances-
(1) Robbery;
(2) House-breaking by night;
(3) 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;
(4) Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
The right mentioned in this section is subject to restrictions given in Section 99.
Section 104 is a corollary of Section 103. It provides that that where the offence of theft, mischief or criminal trespass has been committed or attempted but the description are different from those enumerated in Section 103, the right of private defence of property extends only up to the extent to voluntarily causing of any other harm than death.
Section 105 provides that the right of private defence of property commences as soon as the reasonable apprehension of danger to the property commences. The right continues, in the case of theft-
(1) Offender has effected his retreat with the property, or
(2)Assistance of the public authority is obtained, or
(3) Property is recovered.
In the case of robbery so long as the offender cause or attempts to cause to any person death or hurt or wrongful restraint or instant fear of that. In the case or criminal trespass, mischief and house-breaking as long as the aforesaid offences continue.
In Amjad Khand v. State, AIR 1952 SC 165 Supreme Court held that under Sections 102 and 105 the right of private defence commences as soon as reasonable apprehension of danger to the human body or the property of oneself or another person commences to arise from the attempt or threat to commit an offence, even though offence may not be committed.
Right of private defence against deadly assault when there is risk of harm to innocent person
Section 106 provides that if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender 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 that risk.
For example, ‘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.
