Q. Define the right of private defence. When does a person not have this right? When does this right extend to causing death? When does this right start and when does it end?
It is said that the law of self defence is not written but is born with us. We do not learn it or acquire it some how but it is in our nature to defend and protect ourselves from any kind of harm. When one is attacked by robbers, one cannot wait for law to protect oneself. Bentham has said that fear of law can never restrain bad men as much as the fear of individual resistance and if you take away this right then you become accomplice of all bad men.
IPC incorporates this principle in section 96, which says,
Section 96 – Nothing is an offence which is done in the exercise of the right of private defence.
It makes the acts, which are otherwise criminal, justifiable if they are done while exercising the right of private defence. Normally, it is the accused who takes the plea of self defence but the court is also bound take cognizance of the fact that the accused aced in self defence if such evidence exists.
In Section 97 through 106, IPC defines the characteristics and scope of private defence in various situations.
Section 97 – Every person has a right, subject to the restrictions contained in section 99, to defend –
first – his own body or body of any other person against any offence affecting the human body.
second – 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, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
This allows a person to defend his or anybody else’s body or property from being unlawfully harmed. Under English law, the right to defend the person and property against unlawful aggression was limited to the person himself or kindred relations or to those having community of interest e.g. parent and child, husband and wife, landlord and tenant, etc. However, this section allows this right to defend an unrelated person’s body or property as well. Thus, it is apt to call it as right to private defence instead of right to self defence.
It is important to note that the right exists only against an act that is an offence. There is no right to defend against something that is not an offence. For example, a policeman has the right to handcuff a person on his belief that the person is a thief and so his act of handcuffing is not an offence and thus the person does not have any right under this section.
Similarly, an aggressor does not have this right. An aggressor himself is doing an offence and even if the person being aggressed upon gets the better of the aggressor in the exercise of his right to self defence, the aggressor cannot claim the right of self defence. As held by SC in Mannu vs State of UP AIR 1979, when the deceased was waylaid and attacked by the accused with dangerous weapons the question of self defence by the accused did not arise.
The right to private defence of the body exists against any offence towards human body, the right to private defence of the property exists only against an act that is either theft, robbery, mischief, or criminal trespass or is an attempt to do the same.
In Ram Rattan vs State of UP 1977, SC observed that a true owner has every right to dispossess or throw out a trespasser while the trespasses is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking resource to the remedies available under the law.
Restrictions on right to private defence
As with any right, the right to private defence is not an absolute right and is neither unlimited. It is limited by the following restrictions imposed by section 99 –
Section 99 – 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.
Extent to which the right may be exercised – The right of private defence in no case extends to the inflicting of more harm that it is necessary to inflict for the purpose of defence.
Explanation 1 – A person is not deprived of his 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 his 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.
Upon carefully examining this section, we can see that the right to private defence is not available in the following conditions –
- when an act is done by a public servant or upon his direction and the act
- is done under colour of his office – an off duty police officer does not have the right to search a house and right to private defence is available against him. A police officer carrying out a search without a written authority, cannot be said to be acting under colour of his office. If the act of a public servant is ultra vires, the right of private defence may be exercised against him.
- the act does not cause the apprehension of death or grievous hurt – for example, a police man beating a person senselessly can cause apprehension of grievous hurt and the person has the right of private defence against the policeman.
- is done under good faith – there must be a reasonable cause of action on part of the public servant. For example, a policeman cannot just pick anybody randomly and put him in jail as a suspect for a theft. There must be some valid ground upon which he bases his suspicion.
- the act is not wholly unjustified – The section clearly says that the act may not be strictly justified by law, which takes care of the border line cases where it is not easy to determine whether an act is justified by law. It clearly excludes the acts that are completely unjustified. For example, if a policeman is beating a person on the street on mere suspicion of theft, his act is clearly unjustified and the person has the right to defend himself.
However, this right is curtailed only if the person knows or has reasons to believe that the act is being done by a public servant. For example, if A tries to forcibly evict B from an illegally occupied premises, and if B does not know and neither does he have any reason to believe that A is a public servant or that A is acting of the direction of an authorized public servant, B has the right to private defence.
In Kanwar Singh’s case 1965, a team organized by the municipal corporation was trying to round up stray cattle and was attacked by the accused. It was held that the accused had no right of private defence against the team.
- when the force applied during the defence exceeds what is required to for the purpose of defence. For example, if A throws a small pebble at B, B does not have the right to shoot A. Or if A, a thief, is running back leaving behind the property that he tried to steal, B does not have the right to shoot A because the threat posed by A has already subsided.
In many situations it is not possible to accurately determine how much force is required to repel an attack and thus it is a question of fact and has to be determined on a case by case basis whether the accused was justified in using the amount of force that he used and whether he exceeded his right to private defence.In Kurrim Bux’s case 1865, a thief was trying to enter a house through a hole in the wall. The accused pinned his head down while half of his body was still outside the house. The thief died due to suffocation. It was held that the use of force by the accused was justified.
However, in Queen vs Fukira Chamar, in a similar situation, a thief was hit on his head by a pole five times because of which he died. It was held that excessive force was used than required.
- when it is possible to approach proper authorities – No man has the right to take the law into his hands and so when he has the opportunity to call proper authorities, he does not have the right to private defence. It usually happens when there is a definite information about the time and place of danger. But law does not expect that a person must run away to call proper authorities. The question whether a person has enough time depends on the factors such as –
- the antecedent knowledge of the attack.
- how far the information is reliable and precise.
- the opportunity to give the information to the authorities.
- the proximity of the police station.
In Ajodha Prasad vs State of UP 1924, the accused received information that they were going to get attacked by some sections of the village. However, they decided that if they separated to report this to the police they will be in more danger of being pursued and so they waited together. Upon attack, they defended themselves and one of the attackers was killed. It was held that they did not exceed the right of private defence.
Right to private defence of body up to causing death
Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.
Section 100 – The right of private defence of the body extends under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions here in after enumerated, namely –
First – such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Second – such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
Third – An assault with the intention of committing rape.
Fourth – An assault with the intention of gratifying unnatural lust.
Fifth – As assault with the intention of kidnapping or abducting.
Sixth – 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.
Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.
In Viswanath vs State of UP AIR 1960, when the appellant’s sister was being abducted from her father’s home even though by her husband and there was an assault on her body by the husband, it was held that the appellant had the right of private defence of the body of his sister to the extent of causing death.
To be able to extend this right up to causing death, the apprehension of grievous hurt must be reasonable. In case of Sheo Persan Singh vs State of UP 1979, the driver of a truck drove over and killed two persons sleeping on the road in the night. People ahead of the truck stood in the middle of the road to stop the truck, however, he overran them thereby killing some of them. He pleaded right to private defence as he was apprehensive of the grievous hurt being caused by the people trying to stop him. SC held that although in many cases people have dealt with the errant drivers very seriously, but that does not give him the right of private defence to kill multiple people. The people on the road had a right to arrest the driver and the driver had no right of private defence in running away from the scene of accident killing several people.
Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life is in peril the accused was not expected to weigh in golden scales what amount of force does he need to use and summarized the law of private defence of body as under –
- There is no right of private defence against an act which is not in itself an offence under this code.
- The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or thread to commit some offence although the offence may not have been committed and it is continuous with the duration of the apprehension.
- It is a defensive and not a punitive or retributive right. Thus, the right does not extend to the inflicting of more harm than is necessary for defence.
- The right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of section 100.
- There must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
- The right being in essence a defensive right does not accrue and avail where there is time to have recourse to the protection of public authorities.
Duration of the right of private defence of body
Section 102 specifies the duration of the right of private defence of the body as follows –
Section 102 – The right of private defence of the body commences as soon as a 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.
The right to defend the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger to the body continues.
Right to private defence of property up to causing death
Section 103 of IPC specifies four situations in which the right of private defence of property extends even to causing death.
Section 103 – 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 wrong doer, if the offence, the committing of which, or attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely –
First – Robbery
Secondly – House breaking by night
Third – 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 custody of property.
Fourth – 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.
A person may cause death in safeguarding his own property or the property of some one else when there is a reason to apprehend than the person whose death has been cause was about to commit one of the offences mentioned in this section or to attempt to commit one of those offences.
In case of State of UP vs Shiv Murat 1982, it was held that to determine whether the action of the accused was justified or not one has to look in to the bona fides of the accused. In cases where there is a marginal excess of the exercise of such right it may be possible to say that the means which a threatened person adopts or the force which he uses should not be weighed in golden scales and it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room.
Duration of the right of private defence of property
Section 105 specifies the duration of the right of private defence of the property as follows –
Section 105 – The right of private defence of the property commences as soon as a reasonable apprehension of danger to the property commences. It continues –
in case of theft – till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained or the property has been recovered.
in case of robbery – as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instance hurt or of instance personal restraint continues.
in case of criminal trespass – as long as the offender continues in the commision of criminal trespass or mischief.
in case of house breaking by night – as long as the house, trespass which has been begun by such house breaking, continues.
The case of Amjad Khan vs State AIR 1952, is important. In this case, a criminal riot broke out in the city. A crowd of one community surrounded the shop of A, belonging to other community. The crowd started beating the doors of A with lathis. A then fired a shot which killed B, a member of the crowd. Here, SC held that A had the right of private defence which extended to causing of death because the accused had reasonable ground to apprehend that death or grievous hurt would be caused to his family if he did not act promptly.