THE RIGHT OF PRIVATE DEFENCE

THEORETICAL OVERVIEW

A person has the right to use force to defend themselves from harm or injury if the state is unable to provide aid and the threat is present and immediate. The basic responsibility of the state is to protect its citizens and their property from damage. Nowhere in the penal code is the word “private defence” adequately defined; instead, it has generally changed and grown through time as a result of decisions made by various courts. Giving everyone this right was done so that they would no longer be hesitant to take protective action out of concern for legal repercussions. The primary guiding concept is that man must first look out for himself. Every free nation’s citizen ought to have the ability to defend themselves against any impending danger when receiving assistance from the government is either impossible or impractical. This privilege must be seen as the state’s obligation to safeguard its people and their possessions. However, no state, regardless of how wealthy or resourceful it is, can afford to send out police officers to safeguard every one of its citizens from damage or injury from the outside world.

IPC Section 100 is intended for practicing the right of private defence to a person’s body, whereas IPC Section 103 gives the right of private defence to property. It justifies killing someone who commits a robbery, a nighttime home invasion, an arson theft, damage, or house trespass that results in apprehension or serious injury. A person cannot assert a right of private defence with the property over which he does not have possession. The genuine owner does not have the authority to remove or expel a trespasser if, to his knowledge, the trespasser has been effective in establishing his ownership. Only those crimes listed in this section are eligible for the use of this power.

The extent of the right of private defence and the limitations on the exercise of that right may be summarized as follows:

1. According to this Code, conduct that is not unlawful in and of itself does not have the right to private defence. The exceptions are not covered by this.
2. The right becomes applicable promptly as there is a legitimate worry that criminal conduct is being attempted or threatened, putting the body in danger. The right is only exercised in situations of immediate, actual, and present danger.
3. It is a protective right, not a right to punish or exact revenge. However, reasonable consideration should be given to a genuine defender. In no instance does the right extend to inflicting greater injury than is necessary for defence.
4. If there is a plausible and immediate risk of committing one of the heinous crimes specified in the six clauses of section 100, the right extends to murdering the actual attacker.
5. The only safe or reasonable way for someone who is in imminent danger of losing their life or suffering a significant injury to retreat is by killing the aggressor.
6. When it comes time to use the protection of public authorities, the right, which is fundamentally a defensive right, does not arise and cannot be used.

The exception to the exception right of private defence

• A person may exercise their right to a private defence if they have no knowledge of or reason to suspect that the person, they are defending is a public official. 

• If someone asserts their right to a private defence against a person who was acting on behalf of a public official, that person cannot assert that right if any of the following conditions are true: 

• They are unaware that the person is acting on behalf of a public official; 
• they have no reason to suspect that they are; 
• the person has not declared that they are employed by such a body.
• If the person has the authority in writing and he did not produce such authority, if demanded

Acting in Good Faith: though public official acts in good faith and in the course of his official duties, even though his actions are not authorised by the law, the right of private defence cannot be used. However, the officer cannot be claimed to be acting in the performance of his duty if he is engaging in illegal behaviour.

Understanding the public official’s identity and authority: The accused must be certain that the individual is a public officer to prove this criterion.

Cases in which the right of private defence can be exercised to the extent of causing death

Death-related fear: If a person is being attacked and reasonably fears that his death will result in harm to the other person, he will not murder that person.

Worry of severe harm: In the event of an assault, a person may reasonably worry that should he choose not to murder the aggressor, he may suffer severe harm.

Reasonable Apprehension of Danger: If the victim has a reasonable apprehension that suffering great harm would otherwise result from the assault, they have the right to self-defence of the body, which includes the option of intentionally killing the aggressor. The victim has the right to employ private defence to intentionally put the attacker to death because of this apprehension in his mind How many wounds the accused has received should not be taken into account while evaluating the self-defence claim. Whether an injury was caused or not is irrelevant. The question to be answered is whether or not the accused reasonably believed he would suffer severe injury or death.

Actual or perceived risk– It must be determined objectively regarding the facts and deeds at the time of the offence and the surrounding circumstances whether the accused had any fear of death or great harm at the time he invoked private defence.

The intention of rape: If a person believes that another person is assaulting them with the intent to rape them, they have the right to use lethal force in self-defence. In the State of Orissa v. Nirupama Panda, the accused’s victim entered her home and attempted to rape her. After a struggle, the accused woman fatally stabbed the male, killing him. Because she was using her right of private defence, she was not held accountable.

The intention of satisfying unnatural lust: The other person may use his right of private defence to the point of killing that person if someone is assaulting them with the intent to state their unnatural passion. Indu Kumari Pathak v. S. K. Pathak established that if a wife refuses to consent to cohabitation, the husband is not required to use force to coerce the wife into engaging in sexual activity. The wife has the right to private defence to retaliate against the force used against her, and the husband has no right to inflict harm on his wife to enforce sexual activity.

The intention of kidnapping or abduction: A person has the right to use force to put the kidnapper to death if they believe the other person is trying to kidnap or abduct them or another person.

The purpose of unlawful confinement: A person will not be able to escape or request assistance from public authorities for release if he believes the other person is planning to wrongly detain him or another person. He has the option to use his private defence in this situation to kill the other person.

Act of throwing or attempting to throw acid: This clause was added in response to the Justice J. S. Verma Committee’s recommendations in light of the rising number of acid attacks. It provides that, under certain conditions, a person may exercise his right of private defence to intentionally harm or kill the assailant.

RELEVANT SECTIONS

Section 97- Right of private defence of the body and Property: –

Subject to the limitations in Section 99, every person has the right to defend his or her body against any crime that affects the human body, as well as any other person’s body. They also have the right to defend their property, whether it be movable or immovable, against any act that constitutes theft, robbery, mischief, or criminal trespass, or that is an attempt to commit one of those crimes.

The right to private defence may only be used to the degree that it is necessary under this Section. It can’t be used for purposes other than guarding against aggression. There must be a legitimate fear of danger posed by hostility coming from the aggressor. A crime must have been committed or attempted to be committed against the individual using their right of private defence, or any other person, to raise this defence. However, the issue of whether the right to a private defence accrues is not contingent on the man in question suffering harm. If a plausible suspicion of causing great harm can be proven, the right may be exercised. 

IPC Section 98. Right of private defence against the act of a person of unsound mind, etc:

Every person has the same right to private defence against that act as he might have if the act were that offence. This is true even when an act that would otherwise be a certain offence is not that offence due to the young age, lack of understanding or maturity, unsoundness of mind or insanity, intoxication or drunken state, or any misconception on the part of the person performing the act. Example: Zoya attempts to kill Amir while insane, yet she is not guilty of any crime. However, Amir is entitled to the same private defence as Z would if Z were sane.

IPC Section 99. Act against which there is no right of private defence:

Even if a public servant working in good faith and in the course of his employment commits or attempts to commit an act that is not legally legal but which does not give rise to a reasonable fear of death or great bodily harm, there is no right of private defence. When there is time to seek out the protection of the government, there is no such thing as a right to private defence. To put it another way, there is no right to private defence: 

• against the acts of a public servant; 

• against the acts of people acting under their authority or direction; 

• where there is sufficient time for recourse to public authorities; and 

• where the potential harm inflicted shall in no event exceed the potential harm required for defence.

RELEVANT CASE LAWS

Yogendra Moraji vs. State:

The scope and restrictions of the right to private bodily defence were extensively examined by the supreme court through the work of Sarkaria, J. One of the points emphasized by the court was that the only safe or rational means of departure for a person facing an imminent threat to their life or serious bodily damage must involve killing the aggressor. This feature has caused a lot of uncertainty in the law since it subtly implies that using force to defend oneself is preferable to trying to see if one can retreat first. This idea runs counter to the idea that the law does not reward fear on the part of the one who is being attacked. 

Nand Kishore lal case:

A married Muslim woman was kidnapped and converted to Sikhism by the accused, who were Sikhs. Nearly a year after the kidnapping, the woman’s husband’s family showed up and asked that the accused bring her back. The latter declined to do so, and the woman herself made it clear that she did not want to reunite with her Muslim husband. The wife was then forcibly removed by the husband’s family. The woman’s attackers were killed after the accused fought the attack and one of them did so by striking one of them in the skull. It was determined that because this provision gave the accused the right to protect the woman against her attackers up to and including causing death, they had not broken any laws. 

Mithu Pandey v. State:

Two individuals, each armed with a “tangi” and a “danta,” were supervising the removal of fruit from trees owned by the accused individuals by labourers as they protested the unlawful act. One of the defendants was assaulted and had many injuries in the ensuing altercation. The accused killed someone by using violence. According to the Patna High Court, the accused were entitled to a private defence even if it resulted in death.

Jassa Singh v. State of Haryana:

The Supreme Court ruled that if the act of trespassing involves open ground, the right to private property defence does not apply to killing the person who did such offences. Only a house-trespass that is committed in circumstances where it is reasonable that it would result in death or great bodily harm is listed as one of the offences under Section 103.

The Supreme Court established the following guidelines for the “right to private defence” in the case of Darshan Singh v. State of Punjab:

1. All civilized countries recognise the right of private defence but of course with reasonable limits. Self-preservation is duly recognized by the criminal jurisprudence of all civilized countries.
2. The right of private defence is available only when a person is under a necessity to tackle the danger and not of self-creation.
3. The right to self-defence can only be used if there is a legitimate fear. The right to a private defence may be invoked without the offence having been committed in its totality. If the accused is found, it suffices to prove that an infraction would likely be committed if their right to a private defence is not used.
4. The right to private defence is available as soon as there is cause for suspicion and lasts for the duration of that suspicion.
5. We cannot expect someone who is being attacked to deploy his defence methodically.
6. In a private defence, the accused may only use force that is reasonable and required to protect the person or property.
7. Based on the evidence in the case and the accused’s lack of a self-defence plea, the court may consider this.
8. The accused does not have to establish the existence of the right to a private defence beyond a reasonable doubt.
9. The right to a private defence is only available in cases of a crime, according to the Indian Penal Code.
10. A person may use the right to self-defence to damage their attacker in any way that could result in death if they are in immediate and reasonable danger of losing their life or limb.

IMPORTANT CONCEPTS

How to test the right of private defence?

There isn’t a strict formula to determine whether a person’s behaviour qualifies for private defence or not. It is determined by the particular set of circumstances under which the person acted. A person’s right to private defence may have been exercised in a given situation, but that depends on the facts. The court must take all relevant facts and circumstances into account when making its decision on this factual issue. The court is willing to consider the plea if the circumstances demonstrate that the right to private defence has been properly exercised.

When thinking about the act of private defence, the following considerations must be made:

If there was enough time to contact the authorities, whether the harm was greater than what was necessary, whether the action was necessary, whether the accused person was the aggressor, and whether there was a reasonable fear of death, serious injury, bodily harm, or property damage.

POINTS TO REMEMBER

• IPC Section 100 is intended for practicing the right of private defence to a person’s body, whereas IPC Section 103 gives the right of private defence to property.
• It is a protective right, not a right to punish or exact revenge. However, reasonable consideration should be given to a genuine defender.
• A necessity and a private defence are two legal defences that go hand in hand.
• When there is time to seek out the protection of the government, there is no such thing as a right to private defence.
• The court must take all relevant facts and circumstances into account when making its decision on this factual issue.