The Right of Private Defence

Updated: May 20

Section-96 of Indian Penal Codes deals with the Right of Private Defence. Nothing is an offence which is done in the exercise to defend himself or a property.


Introduction

Every person has the right of self-defence and it is based on general maxim “necessity knows no law” that is “a person who is in great need of something will find a way to get it, and break the law if needed”.

The right to self-defence is based on the instant reaction of the action taken against him or his property and it is not illegal to do so but there are some boundaries also to exercise the right to self-defence.

The right of private defence can be exercised only to repel unlawful aggression and not to retaliate. An act done in the exercise of the right of private defence is not an offence and does not, therefore, give rise to any right to self-defence in return.

According to Mayne, the whole law of self-defence rests on the following four propositions:

1. Society undertakes, and, in the great majority of cases, can protect the private person against unlawful attacks upon their person and property;

2. Where the aid of society can be obtained, it must be reported to;

3. Where the aid of society cannot be obtained, individual may do everything necessary to protect himself;

4. The violence used must be in proportion to the injury to be averted and must not be employed for the gratification of vindictive or malicious feelings.


No Right of Private Defence against an act of Self-Defence

Since the right of self-defence only occurred when any offence or any wrong was being committed to the person, so the aggressor cannot overcome with private defence in his plea because he was the only one committing wrong.

It was held in Shajahan v. State of Kerala, that the burden of proving self-defence lies on the accused. It stands discharged by showing preponderance of probabilities in favour of that plea based on material on record. It was further observed that the right of private defence is essentially a defensive right circumscribed by the governing statute i.e., the Indian Penal Code. It is available only when circumstance justifies it. It cannot be pleaded or availed as a pretext for a vindictive, aggressive, or retributive purpose of offence.


Right to private defence of the body and property

Section-97 states that the right to private defence does not lie only for harm to the body but harm to the property also. This section deals with the extent of the exercise of the right of private defence. And section-99 of the Indian Penal Code provides the limitation on the right. Both of the sections together lay down the principles on the right.


The right of self-defence against the body

Every person has the right to defend himself from any wrong affecting him. In India, every person has the right to defend his own body and the body of any other person against any offence affecting the human body. A man may do for another what he may do for himself. And he should always make a stand against the being committed because that is the morals of good human behaviour.


The right of self-defence against property

The property means any movable or immovable of himself or for any other person against any offence being conducted like theft, robbery, mischief or criminal trespass or attempts to commit any of these offences. A man owes a duty to society to protect the property of others.


Right of private defence against the act of unsound person

Section-98 deals with the right of private defence against the act of the unsound person. A person has a proper right to defend himself from an unsound person but to an extent, only his defence quantum should not be more than the action of the unsound person.

This right applies to other exceptional cases such as:

· A child below 12 years of age

· A person who lacks understanding

· A person with unsound mind

· An intoxicated person


Acts Against which there is no right of private defence

Section-99 makes it clear that there are some of the conditions in which there is no plea of right to private defence.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or 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 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.


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, 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 is 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;

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;

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.


When such right extends to causing any harm other than death

Section-102 provides that if the offence is 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.

Conclusion

The law has recognized the right to private defence in almost all the countries. It is a right to oneself and others from the offence being committed. A person must first help himself and then the other.

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