LawPage

Notes and Articles for Law students

User Tools

Site Tools


ipc:article:private-defence

Scope and limitation of right to private defence

The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. The necessary corollary is that in the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence.

The right of private defence is codified in sections 97 to 106 of the Indian Penal Code. Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression ‘right of private defence’. It merely indicates that nothing is an offence which is done in the exercise of such right.

Section 97 provides:

  1. Every person has a right to defend-
    1. his own body, and the body of any other person, against any offence affecting the human body;
    2. the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
  2. This right of private defence is subject to the restrictions contained in section 99.

Section 99 provides that there is no right of private defence against an act

  1. Which does not reasonably cause the apprehension of death or of 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.
  2. There is no right of private defence against an act which does not, reasonably cause the apprehension of death or of 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
  3. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Section 99 also provides to which extent the right may be exercised. The right of private defence in no case extends to the inflicting. of more harm than it is necessary to inflict for the purpose of defence. Section 99 clarifies the scope by adding two explanations:
Explanation 1- A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2- A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Section 98 provides that the right of private defence is available against the act of a person of unsound mind, etc. When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.

The right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailant under Section 100, if it is apprehended about commission of the offence of

  1. an assault reasonably causing the apprehension that death will otherwise be the consequence of such assault;
  2. an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
  3. an assault with the intention of committing rape;
  4. an assault with the intention of gratifying unnatural lust;
  5. an assault with the intention of kidnapping or abducting;
  6. 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.
  7. An act of throwing or administering acid or an attempt to throw acid which may reasonably cause the fear that grievous hurt will be the outcome of such act.

The right of private defence of the body extends to the voluntary causing any harm other than death under Section 101 if the offence be not of any of the descriptions enumerated in the section 100, but it extends to the voluntary causing to the assailant of any harm other than death. A right of private defence is governed by Section 101, I.P.C. It is subject to two limitations:

  1. In exercise of this right of private defence, any kind of hurt can be caused, but not death; and
  2. The use of force does not exceed the minimum required to save the person in whose defence the force is used.

Section 102 provides that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

The right of private defence of property extends to the voluntary causing of death or of any other harm to the wrong-doer under Section 103 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:

  1. Robbery;
  2. House-breaking by night;
  3. Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property;
  4. 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 provides that if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the section 103, that right does not extend to the voluntary causing of death, but extends to the voluntary causing to the wrong-doer of any harm other than death.

Section 105 provides that the right of private defence of property commences when a reasonable apprehension of danger to the property commences.

  1. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
  2. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
  3. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.
  4. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.

Section 106 provides that if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself.

Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider the occasion for and the injuries received by an accused, the imminence of threat to his safety, the injuries caused by the accused and circumstances whether the accused had time to have recourse to public authorities are relevant factors. The number of injuries is not always considered to be a safe criterion for determining who the aggressor was. Whenever injuries are on the body of the accused person, the presumption must necessarily be raised that the accused person had caused injuries in exercise of the right of private defence. The defence has to further establish that the injury so caused on the accused probabilise the version of the right of private defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record: Sikandar Singh & Ors. vs State of Bihar1), Munshi Ram and Ors. v. Delhi Administration2) ; State of Gujarat v. Bai Fatima3) ; State of U.P. v. Mohd. Musheer Khan4) ; Mohinder Pal Jolly v. State of Punjab5) ; Ranveer Singh V. State of M.P.6)

A three-Judge Bench in Abdul Rashid Abdul Rahiman Patel & Others v. State of Maharashtra7) observed that it is well settled that if injuries on the defence are not explained by the prosecution, the same may be taken to be a ground to discard the prosecution case, in case the truthfulness of prosecution case is otherwise doubted. But, in cases like the present one, where there is consistent evidence of the injured eyewitnesses apart from evidence of independent eyewitnesses, even if it is assumed that the prosecution has failed to explain the minor and simple injuries on the defence, the same cannot be taken to be a ground to reject the testimony of such witnesses.

In Puran Singh & Ors. vs. The State of Punjab8) considering the earlier decision of in Munshi Ram vs. Delhi Administration9) it is held that the right of private defence of person or property is to be exercised under the following limitations:

  1. that if there is sufficient time for recourse to the public authorities the right is not available;
  2. that more harm than necessary should not be caused;
  3. that there must be a reasonable apprehension of death or of grievous hurt to the person or
  4. damage to the property concerned.

The same principles are reiterated in Rame Gowda (Dead) by L.Rs. vs. M. Varadappa Naidu (Dead) by L.Rs. & Anr.10)

In Surendra & Anr. v. State of Maharashtra11) the Court held: “26. We are not unmindful of the fact that in all circumstances injuries on the person of the accused need not be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised. It may be true that in the event prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would not mean that the burden can be discharged only by examining defence witnesses. Even such a plea need not be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case. If a defence is made out, the accused is entitled to be acquitted and if not he will be convicted of murder. But in case of use of excessive force, he would be convicted under Section 304 IPC.” In Satya Narain Yadav v. Gajanand & Anr.12) the Court held:

“14. As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.” (See also Ravishwar Manjhi & Ors. vs. State of Jharkhand13). In Buta Singh v. State of Punjab14) it is held that exercise of right of private defence can not be weighed in golden scales.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1)
2010 (7) SCC 477, AIR 2010 SC 3580
2)
AIR 1968 SC 702
3)
AIR 1975 SC 1478
4)
AIR 1977 SC 2226
5)
AIR 1979 SC 577
6)
2009 (1) O.J.R. 394
7)
2007 9 SCC 1
8)
1975 4 SCC 518
9)
1968 2 SCR 455
10)
(2004 1 SCC 769
11)
2006 11 SCC 434
12)
2008 (10) SCALE 728
13)
2008 (16) SCALE 45
14)
1991 2 SCC 612


Navigation: Home»Indian Penal Code