It is the state’s duty to ensure the protection of the life and property of its citizens. However, it would be too much to ask for the state to protect the individuals and its subjects at every corner of the earth.
This was understood by the framers of the Indian Penal Code and therefore they gave power to the masses to protect themselves and their property in certain situations where the state could not carry out its obligations. This power came to be known as the Right to Private Defense and has been incorporated in the Indian Penal Code from sections 96 to section 106.
This right arises out of the cardinal principle of ‘Self-Preservation’. It does not mean that a free hand has been given to individuals to do vigilante justice but rather it is a source for protection of the self when in the face of harm. Not only does this right incorporate the preservation of the self but also the preservation of someone else or one’s property.
Incorporation In The Indian Penal Code, 1860
Sec 96. Things done in private defence: Nothing is an offense which is done in the exercise of the right of private defense.
Types of Private Defence
- Against body (self and others) (covered under sections)
- Against Property (Immovable and movable both)(covered under sections)
Ingredients of Private Defence
The ingredients have been laid down in section 97 of the IPC as to what will constitute private defense subject to the limitations which have been laid down in section 99 of the IPC. The following are the ingredients of the Right to Private defense:
- Every person has a right to private defense;
- There must be apprehension or fear of harm to body or property;
- Recourse to calling public authorities is not available;
- An offense amounting to commit theft, robbery, mischief or criminal trespass is taking place;
- Force used should be proportional and/or less and not more.
The burden of proof in cases where the plea of self-defense/private defense is taken rests on the accused. It is for the accused to show and prove by placing reliance on evidence that he did the act in order to save himself or his property from harm.
THE RIGHT TO PRIVATE DEFENCE OF A PERSON’S BODY (Sections 98, 100, 101 and 102)
Ø The Right Against acts of Lunatics and Intoxicated Persons (sec 98)
- We all know that acts which are done by people of unsound mind or intoxicated persons do not fall under the category of a criminal offense and they get the benefit of their unsoundness or intoxication.
- This section empowers the public to protect themselves from the actions of such individuals who might commit an offense but due to the nature of their intoxication or unsoundness would not qualify as an offense.
Ø Limitation of the Right (sec 99)
The penal code has also incorporated within its ambit a clause which clearly spells out the boundaries of the Right. Many a time the public authorities have to lawfully carry out their duties which might require some force. This has been done to so that there is no misuse of the right and individuals, who have been given this power to wield it, do so responsibly.
Ingredients of section 99-
- An act will not qualify as an act of private defense;
- There is no apprehension of death or grievous hurt;
- If it is done by a public authority in good faith;
- When there is time to call the public authorities;
- One cannot inflict more harm than necessary.
Ø When death can be caused under the Right of Private Defence (sec 100)-
Sec 100 of the IPC recognizes that in certain situations the death of the person against whom the right to self-defence is being used, can be caused in certain circumstances. The limited circumstances are as follows:
- When there is apprehension that an assault can cause death;
- When there is apprehension that an assault will cause grievous hurt;
- An assault for committing Rape;
- An assault for gratifying unnatural lust;
- An assault for kidnapping or abduction;
- An assault for wrongfully confining a person;
- An act of throwing acid to cause grievous hurt.
Ø When the Right does not extend to causing death (Sec 101)-
- Except as aforementioned, there is a limitation on causing the death of the person against whom the right is being enforced. Sec 101 says that except in cases where there is an apprehension of death to be caused or as those where it is specifically mentioned, death cannot be caused.
Ø When does the Right come into play? (Sec 102)
- Sec 102 clarifies that the right kicks in the moment there is a apprehension to the wellbeing of a person and there is an apprehension that danger can be caused to a person. The apprehension should be such that a reasonable person can identify the harm.
- The natural corollary of this is that the right ceases the moment the apprehension of danger ends.
RIGHT TO PRIVATE DEFENCE OF AN INDIVIDUAL’S PROPERTY (Sec 103, 104 and 105)-
The code has laid down not only the right to defend one’s body, but also one’s property. This property can include both movable and immovable property.
Ø When death can be caused under the Right of Private Defence (Sec 103)-
The death of an individual can be caused in certain excruciating circumstances when the property of a person is threatened and comes in harms way. The limited circumstances are:
- Housebreaking by night;
- Mischief committed on a building, tent, vessel which is used for human dwelling;
- Theft, mischief, or house-trespass which may cause death or grievous hurt.
Ø When the Right does not extend to causing death (Sec 104)
· Except as aforementioned, there is a limitation on causing the death of the person against whom the right is being enforced when one’s property is in danger.
- When an act which does not cause apprehension of death or grievous hurt during the commission of an offence not mentioned in section 103, death cannot be caused.
Ø When does the Right come into play? (Sec 105)
- As per sec 105, the right in regard to the protection of the property comes into play when there is a danger to one’s property.
- The right remains to stay in play till the time the offender has treated from the property or recourse to public authorities has been successfully taken;
- In terms of a robbery the right continues till the apprehension to cause death, hurt or wrongful restraint continues;
- In terms of mischief or criminal trespass, the right stays till the time the apprehension remains;
- In terms of house-breaking at night, the right stays into play as long as house trespass to break in remains.
Can harm be caused to an innocent person? (Sec 106)
- Yes, if during the exercise of the right it becomes unavoidable and harm shall be caused to an innocent person if the right has to be exercised; then in such circumstances, the right extends to that of causing harm to an innocent person.
- The section prescribes that the person can run the risk of hurting an innocent person if it is imperative and necessary to do an act which would save him from the risk and put him away from harms way.
- The Supreme Court in the case of Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555 has observed that the Right to private defence is available to an individual who is put in a sudden place of confrontation with the necessity of averting a danger which is not his creation.
- In the case of Puran Singh v. State of Punjab, 1975 (4) SCC 518, the apex court gave several guidelines as when the right is available to an individual. The right can be exercised in the following circumstances:
- There is a paucity of time to call the public authorities.
- There must fear and apprehension that death or grievous hurt can be caused to a person or property.
- the force which is equivalent in nature or less must have been used.
- In Jai Dev v. State of Punjab AIR 1963 (SC) 612 it was held that the relevant factors which need to be kept in mind by the court while allowing a plea for private defence are the injuries which are received and caused by the accused, whether the accused had time and opportunity to call the public authorities and the nature of threat to him.
It was further held that the right should never be used vindictively or maliciously and it is not a right of retaliation.
- State of U.P. v. Ram Swaroop 1974 AIR 1570, in this case it was held by the court that the right to private defence ends the moment the necessity for the very right ends.
- In the case of P. Jolly v. State of Punjab, 1979 AIR 577 (SC), mischief was caused to the property of the accused. The accused caused the death of the person who had caused the mischief. The court held that the accused had exceeded the right of private defence since there was no apprehension of death or grievous hurt to be caused to the accused. The force used by the accused was more than necessary.
- In the case of S. Naydu v. State of A.P. 2004 (10) SCC 152, it was held than when a party exceeds the right of private defence, then it is imperative to find out as to which individual has exceeded the right and only that particular individual is punished and not all the members.
The right to private defence is a mechanism and power that has been vested in a private person’s hands to protect himself and also his property when he/she is threatened by the harm and fear of unsocial elements.
The state has recognized that harm can come at any point of time and there is a limitation to the working of the state. It cannot be there to take care and protect the life and liberty of the masses round the clock. Therefore it is a tool which has been placed in the commoner’s hands and must be used reasonably.
There is a thin line as to when the right starts and when it no longer remains into play. One needs to keep in mind that the right to private defence is not a right which has been given to use vindictively or retributively. It is a right whose primary objective is the protection of self. The moment the apprehension of harm ceases, the right also ceases.
Therefore all the ingredients need to be kept in mind so that there is no misuse of the right and it does not become a tool for taking the law in the hand. At no point of time does one need to think that the law has given a license but rather it needs to be appreciated that the state recognizes that it cannot be available at all the junctures to protect the masses.