Private Defence is a enjoyed by every citizen of this country. It is enumerated in chapter IV, Sections 96 to 106 of Indian Penal Code 1860. This right exempts the person for taking law in his hands for the safety of himself or his property or to the protection of other person or that person’s property.
The right is based upon the two general maxim
1) ‘‘necessity knows no law’’ and
(2)‘‘it is the primary duty of a man to first help himself.’’
In the words of famous jurist Jeremy Bentham, ‘‘The Right of Private Defense is absolutely necessary for the protection of one’s life, liberty and property.
Interpretation by the Supreme Court
In a verdict delivered on March 7, 2019,Supreme Court of India expanded the scope of self defence. The bench of Justices A.M. Sapre and R. Subhash Reddy turned down the sentence given by the trial court to the Tamil Nadu forest ranger who shot dead a sandalwood “smuggler” in the the dharmapuri forest area in 1988, and acquitted him.
The trial court had sentenced ranger Sukumaran to life in prison for murder. The Madras High Court reduced the term to five years. In appeal, the SC concluded that Sukumaran had shot the “smuggler” under threat to his own life and that of his driver. The bench of the apex court said that, ‘‘A mere reasonable apprehension is enough to put the right of self defence into operation.’’
The Court also observed that ‘‘the right to private defence of one’s own body against any offense affecting the human body but also to defend the boy of any other person. The Right also embraces the protection of property, whether one’s own or another person’s against certain specified offences, namely, theft, robbery, mischief, and criminal trespass.’’
Detailed understanding
Now let’s understand the sections of private defence given in the Indian Penal Code in detail.
Section 96: Things done in private defence: Right of private defence is not revenge. This section explains that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of defence.
Section 97: Right of Private defence of the body and of property: This Section of IPC divides the right of private defence into two parts.
a) The right of private defence of person,
b) The right of private defence of property.
According to this section, this right extends not only to the defence of one’s own body or property but also to defend the body and property of any other person. Even a stranger can defend the person or property of another person and vice versa.
Section 98: Right of Private defence against the act of a person of unsound mind, etc. : This section mentions that the right to private defence from its very nature admits 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, with or without mens rea.
Section 99 : Acts against there is no right of Private defence : there are four acts is mention where no right of private defence can be used as an excuse. These are as following:
i) against the acts of a public servant acting in good faith.
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.
iv) the quantum of harm of that may be caused shall in no case be in excesses.
Section 100: When the right of private defence of the body extends to causing death:
Section 100 is very important to understand as it states that one can even kill the other person in his defence. But to invoke this section following four conditions must exist.
i) The person exercising the right of private defence must be free from fault in bringing about encounter.
ii) There must be present, an impending peril to life or of great bodily harm, rape, unnatural lust, kidnapping or abduction, wrongful confinement etc.
iii) There must be no safe or reasonable mode of escape by retreat, and
iv) There must have been a necessity for taking the life.
Section 101,when the right extends to causing harm other than death: This Section provides that, if the offence be not of any of the description enumerated in Section 100; the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend to the voluntary causing to the assailant of any harm other than death.
Section 102,Commencement and continuance of the right of private defence of the body: Section 102 deals with two very important aspects of the right of private defence of body –
a) the right commences at that point of time when a reasonable apprehension of danger to the body arises either from an attempt to commit an offence on the body or from a threat to commit such offence even though in either of these cases the offence itself may not have been committed.
b) the right continues till such apprehension of danger to the body continues.
Section 103, when the right of private defence of property extends to causing Death : 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, Robbery ; House-breaking by night; Mischief by fire committed on any building, tent or vessel, which is being used as a human dwelling, or as a place for the custody of property; 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.
Section 104, when such rights extends to causing any harm other than death”:
This section is correlated to the section 103. It says that where the offence of theft, mischief or criminal trespass has been committed or attempted but the description are different from those enumerated in section 103 of the Code; the right of private defence of property extends only up to the extent to voluntary causing of any other harm than death.
Section 105, commencement and continuance of the right of private defence of property: This section is comparable to Section 102, and indicates when the right of defence of property commences and till that period it continues.
In case of theft the right of private defence of property is put to an end by the successful retreat of the thief, if the thief is running away with the property, he cannot be said to have retreated. It is only when he reaches his final destination that he can be said to have retreated. The question whether or not there was enough time for the injured party to have recourse to the protection of the public authorities is always a question of fact depending on the circumstances of each case.
Section 106: right of private defence against deadly assault when there is risk of harm to innocent person: The section says that in case of an assault, reasonably causing an apprehension of death, if the defender is faced with such a situation where there exists risk of harm to an innocent person, there is no restriction on him to exercise his right of defence and he is entitled to run that risk.
Burden of Proof
The burden of proof in cases of where the plea of private defence is taken rests on the Accused. It is for him to prove the innocence and define that he acted out of necessity, he actually left with no other way but to use his right of defence.
Conclusion
This right is based on the natural law that,the self protection is the primary duty of every living being. The one who cannot help himself, no law will be able to protect him. The right to defence is a very powerful weapon so it should be used only in the necessity.
Eduindex News 