right of private defence
Question 1 :-Discuss the right of private defence
against offences relating the human body. Is there any difference between
Indian Law and English Law.?
OR
Section 97 of IPC defines that the right of private defence
of the body and of property?
Or
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?
RIGHT OF PRIVATE DEFENCE
Introduction
:
·
IT IS SAID THAT SELF DEFENCE IS BURNT WITH US ,IF
SOME ONE ATTACK You with a knife you canot wait for law to protect you.
·
It is a first duty of a man to help himself .
·
Self
help is the first rule of criminal law.
·
The
Indian Penal Code, 1860 has given the right of private defence of body and
property to every Individual.
·
Section 96 to 106 of Indian Penal Code states
the law relating to the right of Private Defence of person and property
·
It is primary duty of the State
to protect life and property of citizens. But the fact is that State
cannot watch each and every activity of the citizens.
·
There may be situations in which
the State cannot help person immediately when his life or property is in
danger. In view of this Indian Penal Code has given the right of private
defence of body and property of every individual.
Right of Private Defence
In the words
of Bentham, "The Right of Private Defence is absolutely necessary for the
protection of ones life, liberty and property. "
Section 96 to 106 of Indian Penal Code, 1860 states the law relating to the
right of Private Defence of person and property.
The law of private defence is
based on two main principles -
(a) Everyone has
right to defend his own body and property and anothers body and property.
(b) The Right of
Private Defence is not applicable in those cases where accused himself is an
aggressive party.
Sec-96 of IPC says Things done in private defence :-
Nothing is an offence which is done in the exercise of the right of private
defence.
sec-97 OF IPC further says
Right of private defence of the body
and of property: -
Every person has a right, subject to the
restrictions contained in Section 99, to defend -
First -
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 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.
.
EXPLANATORY NOTES ON SEC-96 AND 97 ipc
Sec-97 broadly specify the ofences ahainst which Right of
private defence can be exercise .sec-99
provides its limitations. Section 97 of Indian
Penal Code divides the right of private defence into two parts. first part
deals with the right of private defence of person and second part with the
right of private defence of property. The rights of defends is not only to the
defence of own body or property but also extend to defending the body and
property of any other person. Even a stranger can also defend the person or
property of another person and vice versa
These two sec combined together lay down the principle of
right of private defence.
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.
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. Right of private defence
canot be said to be offence in return or revenge or punishment .it is defence
for protection of body and property.
Restriction
of right of private defence
According to
Section 99 of Indian Penal Code there is no right of Private defence -
i) against the acts of a public servant acting
in good faith and;
ii) against the acts of the those acting under
the authority or direction of a public servant.
iii) where there is sufficient time for recourse
to public authorities; and
iv) The quantum of harm of that may be caused
shall in no case be in excesses.
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.
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.
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.
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.
Scope :
Section 98 of
Indian Penal Code assumes that the right to private defence from its very
nature admits of no exception since it is the right of preservation of one's
life and property as also another's life and property against the world at
large. The right of defence of the body exists against all attackers, whether
with or without mens rea.
Right of private defence is
available against -
(i) Minor;
(ii) Person of unsound Mind;
(iii) Intoxicated Person
(iv) Person having no maturity of
understanding
(v) Person acting under misconception.
Illustrations
(a) 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 sane.
When the right
of private defence of the body extends to causing death (Section100) :
Right to private defence of body
up to causing death
Section 100 of IPC specifies seven situations in which the right of private
defence of body extends even to causing death
The right of
private defence of the body extends, under the restrictions 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 the right be
of any of the descriptions hereinafter enumerated, namely :
First - 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; (See.. Difference between Hurt and
Grievous Hurt )
Thirdly -
An assault with the intention of committing rape;
Fourthly - An assault with the intention of gratifying
unnatural lust;
Fifthly -
An assault with the intention of kidnapping or abducting; (See... Kinds of Kidnapping)
Sixthly - 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. (See..Difference
between wrongful Restraint and Wrongful Confinement )
Seventhly - 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.
[Inserted by Section 2 of ‘The Criminal Law (Amendment) Act, 2013.]
Ingredients
To invoke Section 100 of Indian Penal Code following
four conditions must exist.
(1) The person exercising the right of private
defence must be free from fault in bringing about encounter.
(2) There must be present an impeding peril to
life or of great bodily harm, rape, unnatural lust,kidnapping or abduction,
wrongful confinement etc.
(3) There must be no safe or reasonable mode of
escape by retreat, and
(4) There must have been a necessity for taking
the life.
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 -
1. There is no right of private defence against an act which is
not in itself an offence under this code.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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
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.
When such right extends to causing any
harm other than death (Section 101) :
If
the offence be not of any of the descriptions 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.
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
When
the right of private defence of property extends to causing death (Section 103)
:
The right of private
defence of property extends, under the restrictions 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 the 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;
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, 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.
9) When such right to causing any harm other
than death (Section 104) :
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 extend, subject to the restrictions mentioned in section 99, to
the voluntary causing to the wrong-doer of any harm other than death.
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 -
Commencement and continuance of the right of
private defence of property (Section 105)
The
right of private defence of property commences when a reasonable apprehension
of danger to the property commences.
The right of private defence of property against theft continues 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.
The right of private defence of property against robbery continues 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 instant hurt
or of instant personal restraint continues.
The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal
trespass or mischief.
The right of private defence of property against house-breaking by night
continues 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
11) Right of
private defence against deadly assault when there is risk of harm to innocent
person (Section 106) :
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.
Illustration :
A is attacked by a mob who attempt 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.
