Private Defence

Section 96 of the Indian Penal Code, 1860 lays down that nothing is an offence which is done in the exercise of right of private defence. Section 97 lays down that this defence extends to:

  1. His own body
  2. Body of any other person

against any offence that affects the human body; or against

  1. The property- movable or immovable of himself
  2. Movable or immovable property of any other person

against any act which is an offence falling under theft, robbery, mischief or criminal trespass or an attempt to commit these offences.

Right of private defence laid down in IPC is only available when the circumstances clearly justify it. It doesn’t include a right to launch an offence especially when the need to defend doesn’t exist anymore.

In Jai Dev v State of Punjab[1], the accused bought a land in a village but since they were outsiders, they were treated as strangers by the villagers.  When the accused, who were armed, were ploughing the field, the villagers came armed in large numbers to take possession of the field. The accused, in self defence caused harm and shot one dead. Subsequently the villagers started fleeing which when the right of private defence ended but the accused still shot two of them. The Supreme Court held that the accused were liable for murder.

Right of private defence not available against lawful acts

The right of private defence arises only in situations where there is an unlawful aggression against the accused. For instance, if A were to enter B’s property for the purpose of executing an order of the court and B prevents A from doing so and subsequently causes harm or injury to A, the plea of private defence is not available to B.

Right of private defence against acts of lunatics and intoxicated persons

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 part 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.

So, section 98, specifically provides that the right of private defence extend to acts which would be offences, but for the fact that they are acts of youth, persons of unsound mind, acts of intoxicated persons and acts done under misconception. It ensures that a person does not lose his right of private defence merely because legally the other party is not competent to commit any offence.

Limitations on the right of private defence

Section  99 enumerates the restrictions that the right of private defence is subject to. These restrictions are:

  1. Acts of public servants
  2. Time to have recourse to authorities
  3. Right does not extend to causing more harm than necessary

Acts of public servant

Private defence is not available against actions of public servants or actions done under the direction of one, if it is done in good faith under the colour of his office. But this does not apply when such action causes a reasonable apprehension of death or of grievous hurt. Also, this section only applies when the other person knows that the actions are done by a public servant or under the direction of one.

Time to have recourse to authorities

If the person has the time to have recourse to the protection of authorities, then there is no right of private defence. This restriction is based on the fact that the right of private defence is given to avoid any imminent danger. This time element does not depend on the gravity of the threat but on the accused’s reasonable apprehension that the danger would be caused by the time public authorities act.

Right does not extend to causing more harm than necessary

The right of private defence does not extend to inflicting of more harm than it is necessary for the purpose of defence.

In Mohinder Pal Jolly v State of Punjab[2], there was a dispute between the workers and the management over demand for wages. The workers threw bricksbats at the factory. The owner of the factor came out and fired with a revolver killing one worker. The Supreme Court held that the owner exceeded his right of private defence.

In Baljit Singh v State of Uttar Pradesh[3], the accused party was in possession of some disputed land. The complainant’s party trespassed into the land armed with lathis. The accused party tried to protect the land from trespass, as a result of which the accused assaulted the deceased and caused as many as 72 injuries which resulted in the death of the deceased. It was held that the accused exceeded his right of private defence.

When the right of private defence of body extends to causing death

Section 100 stipulates seven situations when the right of private defence of body extends to causing death. These are:

  1. The assault is such that it reasonably causes apprehension of death.
  2. The assault is such that it reasonably causes the apprehension of grievous hurt.
  3. The assault is caused with the intention of causing rape.
  4. The assault is with the intention of gratifying unnatural lust.
  5. The assault is with the intention of kidnapping or abducting.
  6. The assault with the intention of wrongfully confining a person under circumstances that causes him to believe that there is not time recourse to the public authorities.
  7. An act of throwing or administrating acid, or an attempt to do the same.

When right of private defence of body does not extend to causing death

If the offence is not covered under any of the situations mentioned above, then the right of private defence does not extend to causing death.

In Yogendra Morarji v State of Gujarat[4], there was a dispute over payment of dues claimed by the deceased from the accused. The accused’s jeep was stopped in the middle of the road by the deceased and others. The deceased party pelted stones on the accused. The accused fired three rounds, one of which killed the deceased. The Supreme Court held that even though there might have been apprehension of physical harm, the accused were in a closed station wagon and hence was in no danger. He could have also just fired one round instead of firing three. Thus the court held the accused guilty under section 304.

When the right of private defence of property extends to causing death

As mentioned in section 103, in the following circumstances, the right of private defence of property extends to causing death, if the offence committed or attempted is:

  1. Robbery
  2. House breaking by night
  3. Mischief by fire on any building, tent or vessel used as human dwelling or as a place for the custody of property
  4. Theft, mischief or house trespass, under such circumstances, that they may cause a reasonable apprehension of death or grievous hurt.

If the offence committed or attempted is not a part of these 4 situations, that the right does not extend to causing death.

[1] AIR 1963 SC 612.

[2] AIR 1979 SC 577

[3] AIR 1976 SC 2273

[4] AIR 1980 SC 660

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