Private Defence

0
2505
Private Defence

Under the IPC, Sections 96 to 106 deal with provisions of private defence of person and property. A man by law is authorized to use necessary force for protecting his body or his property and another’s person as well as property against the wrong-doer when immediate help from the state machinery is not available. Self-help is one of the fundamentals of criminal law and it is necessary for the protection of life, liberty and property. Although it is the duty of the State to protect the individuals but there may be situations that aid from the State authorities cannot be obtained. To meet such exigencies provisions of self defence have been made.

Statutory Provisions

Section 96 clearly states that anything done in the exercise of the right of private defence is not an offence. As per section 97, each one of us have a right to defend ones body as well as the body of other person. Similarly, we do have a right to protect our property (including movable and immovable) and other person property against any act which amounts to theft, robbery, mischief and criminal trespass or any attempt to commit the aforementioned offences. Any act done which otherwise amounts to an offence shall be no offence if done in state of intoxication, unsoundness of mind, want of maturity, misconception and infancy [section 98].

Section 99 enlists certain circumstances against which no right of self defence is available. Any act done by a public servant or on the direction of a public servant in good faith not giving rise to reasonable apprehension of death or grievous hurt and where reasonable time exist to resort to the protection of public authorities have been exempted from self-defence. However, this right extends to a person having no reason to believe that the person doing the act is a public servant. Where any act is done in the direction of a public servant, unless the person has reason to believe that he is acting under the authority of a public servant retains the right to self-defence.

Proportionality rule and necessity rule govern the use of force for self-defence. However, there are seven exceptions to the general rule where the force used against the wrong doer could extend to resulting his death [section 100].

  • Reasonable apprehension of death
  • Reasonable apprehension of grievous hurt
  • Assault with the intention of committing rape
  • Assault with the intention of gratifying unnatural lust
  • Assault with the intention of kidnapping
  • Assault with the intention of wrongful confinement which gives the person a reasonable apprehension that he will be unable to take assistance of public authorities
  • An act or attempt to throw acid

No sooner does the reasonable apprehension of danger to body arises than the right to private defence commences and continues till the reasonable apprehension of danger to body arises [section 102].

Comparison with Other Countries

Position in United Kingdom

In England, a person is permitted to use only “reasonable force” in order to protect oneself or others in case of a crime taking place inside his home. This has two implications- firstly, protection in the heat of the moment and secondly, stop the intruder from running off. However, no specific definition of reasonable force has been given. The reasonable force is to be determined depending on the factual circumstances. If a person does what he thinks is necessary at that spur of moment, he can be said to have acted well within the law.

Position in United States of America

Throughout U.S.A., the ability of the people to defend themselves vary from latitude to latitude. For example, Florida in 2005 passed stand your ground laws. It means that people are to stand their ground rather than retreating if they are of reasonable belief that doing so will “prevent death or great bodily harm”. Another doctrine governing defence laws is castle doctrine or defence of habitation laws. It implies no duty to retreat before using a deadly force usually confined to a particular place like home or business. Majority of the U.S. states have castle doctrine including California, Illinois, Lowa, Oregon and Washington. States like Missouri and Ohio include personal vehicles. The third governing principle is duty to retreat.

Position in Australia

Section 10.4(2) of the Criminal Code 1994 states that a person can take recourse to force to defend oneself or any other person, prevent unlawful imprisonment of oneself or any other person, protection of property from illegal appropriation, destruction, damage, interference, prevent criminal trespass to any land or premises.

Position in Pakistan

The position in Pakistan is same as that of India. Section 96-106 of Pakistan Penal Code is on the same line as that of Indian Penal Code.

Illustrations

Illustration 1 – H. Pathani v State[1]

A quarrel took place between husband (accused) and wife (deceased). The accused attacked the deceased with pestle. In order to save her, the wife caught hold of his private parts. He gave one blow of pestle on her head which resulted to her death. The Division Bench of Madras High Court held that the accused had exceeded his right of private defence.

Illustration 2 – Lakshman Singh v State of Orissa[2]

The deceased had abused the accused. The accused gave one blow of lathi to the deceased resulting into his death. The Supreme Court upheld the conviction of  the trial Court u/ 304, part-I.

Illustration 3 – Krishna vs. State of Madras[3]

The accused had attacked the Sales Tax Officer who came to his shop for an inspection. The officer attempted to seize the account books of the accused u/sec. 41 (3) of the Madras Sales Tax Act, 1951. He was abducted and assaulted by the accused. The accused was held to be guilty and was not entitled the protection of private defence.

Illustration 4 – Mohindar Pal vs. State of Punjab[4]

The workers called for a strike. They were demanding enhancement of wages. They entered the office of the owner of the factory and were shouting slogans. They destroyed goods and furniture of the office. The accused came out of his room and fired a shot from his revolver, resulting the death of one worker. The Supreme Court held that the accused caused more harm than was necessary, and thus he was not entitled the defence of right of private defence.

Frequently Asked Questions (FAQs)

1. What is self defence in criminal law?

Private defence has not been defined in IPC. In general sense private defence or commonly known as “self defence” is “protection of one’s person or property against some injury attempted by another”[5]. In other words, it is an excuse for the use of force in resisting an attack on the person, and especially for killing an assailant. The right to private defence is not to be exercised for vengeance. It ought to be exercised in good faith.

2. Why self defence is important?

Self-preservation is the chief character of every human being. Every person has a right to defend his body and property. Such kind of instinct can be seen in animals even.

3. Can I kill in self defence?

Yes. There are seven instances mentioned aforesaid under which a person can go to the extent of causing death in self defence.

4. Can self defence be justified?

Yes. Self defence can be justified only to the extent it is proportional and necessary to prevent the wrong-doer to cause any harm. It must continue only till the time the danger to a person’s body exists.

 Edited by – Sakshi Agarwal

Quality Check – Ankita Jha

Approved & Published by –  Sakshi Raje

References

[1] 1993 CrLJ 1709 Mad.

[2] AIR 1988 SC 83.

[3] 1968 (2) STC 253.

[4] AIR 1979 SC 577.