Right of Private Defence
Updated: Jan 15
The Indian Penal Code commands a place of a masterpiece in penal codes around the globe through it was drafted one and half-century ago but surely it was ahead of its time as it is still in use with some amendments. The best example can be seen in present times when to punish offenders in relation to Covid-19 pandemic, there were already provisions in the Code, this highlight the farsightedness of legislators. The Code provides penal sanctions to the offenders and also it provides the rights to public authority and victims.
The Code provides the Right of private defence to a person whose life, body or property is in danger, to use force against such person or offender who is committing such offence or who apprehends to do so. It states nothing is an offence done by a person in right of private defence under section 96 of the Code.
The general principle of the Right of private defence is that one should use the proportionate force against the force or apprehension used by the offender and only when there is no time to recourse to the protection of public authorities as stated under section 99.
There are two types of Right of private defence as stated under section 97 which are as under
Right of private defence of one’s own body or body of some other person, against any kind of offence affecting the human body
Right of private defence of one’s own property or property of some other person whether movable or immovable against any act which comes under the category of Robbery, Mischief or Criminal trespass or attempt of foregoing offences are also covered in this section.
Though the Right is given to a person for the protection of himself and the property above-mentioned Right of private defence is not unrestricted and so it is subject to the provisions of section 99.
Section 98 states that the Right of private defence is available against an act of an unsound person or intoxicated person in the same manner as if the act is done by any person, not under any disability.
Section 100 states that the Right of private defence of body when extends to causing death, in the following conditions subject to conditions of section 99, the Right of private defence of the body shall extend to cause death:
Any act that causes reasonable apprehension of death;
Any act that causes reasonable apprehension of grievous hurt;
Any assault with the intention of committing rape;
Any assault with intention to satisfy the unnatural lust;
Any assault with intention of wrongful confinement of the person under such circumstances that may cause him to suspect that he is unable to seek public authority for his release
Any act of throwing or administering acid or an attempt of doing so i.e. throwing or administering acid, which causes a reasonable apprehension of causing grievous hurt
Section 101 states that if any offence not stated above is done or apprehension is there then the Right of private defence of the body does not extend to causing death and with subject to the provisions of section 99 any other harm can be inflicted on the assailant but proportionate to the force or apprehension by an assailant.
Section 103 states that the Right of private defence of property extends to cause death but complies with provisions of section 99.
Whether the offence is committed or mere attempt of the commission of such offence is done, then Right of private defence extends to cause death if such offence falls under the following heads:
Housebreaking by night
Mischief by fire on any tent, building or vessel, which is used for human dwelling, or any place for keeping valuables or any property.
Theft or Mischief or House-trespass under such circumstances that there is a reasonable apprehension of death or grievous hurt is caused by such offence unless that right of private defence is exercised.
Section 104 states that any offence not listed above is done then the Right of private defence of property does not authorize to cause death any harm other than death can be done by the person on whose property such apprehension is there.
While section 106 states that the Right of private defence against a deadly assault and if the person cannot exercise the Right of private defence without risk to harm the innocent person then, the Right of private defence entitles him to run that risk.
The Code also specifies in section 102 and 105 the commencement and continuance of the Right of private defence to body and property respectively and the pivot point of both the section is the Right will arise as soon as there is an apprehension of danger on body or property arises and it continues as long as the apprehension of danger to body or property continues.
Right of private defence is among the few defences available to a person to reduce or evade his liability from the criminal act. The plea of these defences cast the burden of proof on the person taking its help as per Section 105 of Indian Evidence Act, 1872 and these defences are not prima facie presumed by Court.
ABOUT THE AUTHOR:
Sitanshu Chaturvedi has completed LLM (Constitutional Law) from National Law University and Judicial Academy of Assam.
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Edited By: Swati Tolambia
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