Private Defence: Meaning and Types: Nature of The Right
Private Defence: Meaning and Types: Nature of The Right
Private Defence: Meaning and Types: Nature of The Right
The expression ‘private defence’ that has been used in the Indian Penal Code, 1860,
has not been defined therein. Thus, it has been the prerogative of the judiciary to
evolve a workable framework for the exercise of the right. Thus in India, the right of
private defence is the right to defend the person or property of himself or of any other
person against an act of another, which if the private defence is not pleaded would
have amounted to a crime. This right therefore creates an exception to criminal liability.
Some of the aspects of the right of private defence under the IPC are that no right of
self-defence can exist against an unarmed and unoffending individual, the right is
available against the aggressor only and it is only the person who is in imminent
danger of person or property and only when no state help is available. The right of
private defence is a natural right which is evinced from particular circumstances rather
than being in the nature of a privilege[iii].
However, the most important principle is that the right of private defence requires that
the force used in the defence should be necessary and reasonable in the
circumstances. But, in the moments of disturbed mental condition, this cannot be
measured in golden scales. Whether the case of necessity exists must be determined
from the viewpoint of the accused and his act must be viewed in the light of the
circumstances as they appear on such occasion. Specific limitations have also been
provided for when the right cannot be validly exercised and also the provision specifies
clearly the cases in which the right can extend to the causing of death of the aggressor.
The reasonable apprehension can only be justified if the accused had an honest belief
that there is danger and that such belief is reasonably warranted by the conduct of the
aggressor and the surrounding circumstances. This brings in an iota of an objective
criterion for establishing ‘reasonableness.’ The imminence of danger is also an
important prerequisite for the valid exercise self-defence[iv]. Thus, there should be a
reasonable belief that the danger is imminent and that force must be used to repel it.
One thing should be clear that there is no right of private defence when there is time
to have recourse to the protection of police authorities. The right is not dependent on
the actual criminality of the person resisted. It depends solely on the wrongful or
apparently wrongful character of the act attempted and if the apprehension is real and
reasonable, it makes no difference that it is mistaken. An act done in exercise of this
right is not an offence and does not, therefore, give rise to any right of private defence
in return[v].
Private Defence In The Indian Legal
System
Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is
absolutely necessary. The vigilance of the Magistrates can never make up for vigilance
of each individual on his own behalf. The fear of the law can never restrain bad men
so effectually as the fear of the sum total to individual resistance[vi]. Take away this
right and you become, in so doing, the accomplice of all bad men.” This right is based
on two principles,
There are three tests for ascertaining reasonable apprehension; they are the objective,
subjective and expanded objective tests. While objective test emphasizes as to how
in a similar circumstance an ordinary, reasonable, standard and average person will
respond, the subjective test examines the mental state based on individual attitude.
However, expanded objective test, being a combination of aforesaid two tests, bases
its inquiry to determine whether or not the individual acted as a reasonable person.
Right of private defence serves a social purpose and the right should be liberally
construed. Such a right is not only a restraining influence on corrupt characters but
also encourages manly spirit in a law abiding citizen. It should not be narrowly
construed as it necessitates the occasions for the exercise of this right as an effective
means of protection against wrong doers.
The Right to private defence of a citizen, where one can practically take law in his own
hands to defend his own person and property or that of others, is clearly defined in
Section 96 to Section 106 of the Indian Penal Code.
Section 96 talks about things done in private defence – Nothing is an offence, which
is done in the exercise of the right of private defence.
Right of private defence cannot be said to be an offence in return. The right of self-
defence under Section 96 is not ,absolute but is clearly qualified by Section 99 which
says that the right in no case extends to the inflicting of more harm than it is necessary
for the purpose of defence. It is well settled that in a free fight, no right of private
defence is available to either party and each individual is responsible for his own acts.
The right of private defence will completely absolve a person from all guilt even when
he causes the death of another person in the following situations, i.e
First-His own body, and the body of any other person, against any offence affecting
the human body;
This Section limits exercise of the right of private defence to the extent of absolute
necessity. It must not be more than what is necessary for defending aggression. There
must be reasonable apprehension of danger that comes from the aggressor. This
Section divides the right of private defence into two parts, i.e. the first part deals with
the right of private defence of person, and the second part with the right of private
defence of property[vii].
Section 99 lays down the acts against which there is no right of private defence: –
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 a
public servant acting in good faith under color of his office, though that act, may not
be strictly justifiable by law.
Section 99 lays down the conditions and limits within which the right of private defence
can be exercised. The first two clauses provide that the right of private defence cannot
be invoked against a public servant or a person acting in good faith in the exercise of
his legal duty provided that the act is not illegal[viii]. Similarly, clause three restricts the
right of private defence if there is time to seek help of public authorities. And the right
must be exercised in proportion to harm to be inflicted. In other words, there is no right
of private defence:
The right of private defence of the body extends, under the restrictions mentioned in
the last preceding section, to the voluntary causing of death or of any other harm to
the assailant, if the offence which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely: —
First-Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
To invoke the provisions of Section 100 of I.P.C., four conditions must exist:-
The person exercising the right of private defense must be free from fault in
bringing about the encounter,
There must be an impending peril to life or of great bodily harm,
There must be no safe or reasonable mode of escape by retreat,
There must have been a necessity for taking life.
Section101 prescribes when such right extends to causing any harm other than death:-
If the offence be not of any of the descriptions enumerated in the last preceding
section, the right of private defence of the body does not extend to the voluntary
causing of death to the assailant, but does extend, under the restrictions mentioned in
Section 99, to the voluntary causing to the assailant of any harm other than death[ix].
Section103 specifies 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 building, tent of vessel is 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 103 provides the right of private defence to the property whereas Section 100
is meant for exercising the right of private defence to the body of a person. It justifies
homicide in case of robbery, house breaking by night, arson and the theft, mischief or
house trespass which cause apprehension or grievous harm. If a person does not
have possession over the property, he cannot claim any right of private defence
regarding such property[xi]. Right to dispossess or throw out a trespasser is not
available to the true owner if the trespasser has been successful in accomplishing his
possession to his knowledge. This right can be only exercised against certain criminal
acts that are mentioned under this section.
Section104 tells us when such right extends to causing any harm other than death:-
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 last preceding section, that right does not
extend to the voluntary causing of death, but does extend, subject to the restrictions
mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other
than death. This Section cannot be said to be giving a concession to the accused to
exceed their right of private defence in any way[xii]. If anyone exceeds the right of
private defence and causes death of the trespasser, he would be guilty under Section
304, Part II. This Section is corollary to Section 103 as Section 101 is a corollary to
Section 100.
Section106 talks about right of private defence against deadly assault when there is
risk of harm to innocent person: –
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 or
private defence extends to the running of that risk.
Under English law the status of the right of self-defence underwent a series of changes
through the ages. In the ancient period, there was absolute liability even for homicide
committed se defendendo. In the Medieval period, the theory of pardon developed and
it became excusable, whereas in the Modern Age, homicide committed in self-defence
is treated as justifiable, because it is presumed that such an act is not backed with evil
intent.
In the early days, the law regarded the word and the act of the individual but it did not
search the heart of the man. It was the age of strict liability[xv]. Man was held
responsible for his acts irrespective of his intentions. His mental state was not taken
into account when determining liability for the commission of the crime. It was the
external conduct and the injury upon which liability was imposed. The accidental
injuries and the injuries inflicted during self-defence, also attracted liability. Thus,
criminal liability was not related to the evil intention of the actor.
However, in the 13th century there was a shift from strict liability and emphasis was laid
on the mental element. During this period, killing was justified in a few exceptional
cases. One who killed in misadventure, or in self-defence was still guilty of a crime,
although he deserved a pardon from the King[xvi]. During the Medieval period, though
the accused obtained pardon yet he forfeited his goods for the crime committed in self-
defence.
The moral sense of the community could not tolerate indefinitely the idea that a
blameless self-defender was a criminal. Ultimately, the jury was allowed to give a
verdict of not guilty in such cases. Pardon of the King soon became a formality in such
cases and thus grew the concept of excusable homicide. The act of pardon was a kind
of excuse[xvii]. The word excuse itself denoted the condonation of wrong committed
by the offender. Blackstone perceived the essence of excuses to be ‘the want or defect
of will’. This all changed in the modern period. In modern times, there is a presumption
that there is no mens rea in the homicides committed in self-defence and as such it
has become a justifiable general defence in law. Thus, now no criminal liability is
attached to the accused in such cases. This is in conformity with the provisions of
Article 2 of the European Convention on Human Rights.
Thus, in modern times every evolved legal system has accepted the right of self-
defence as a universal one.
On the other hand Glanville Williams’ analysis of the elements is more comprehensive:
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American Law
The position under American law is also very similar. Great importance is given to the
following concepts when dealing with the concept of self-defence.
Thus, it can be seen that in the various legal systems of the world, there are certain
common established principles pertaining to self-defence.
However, the local courts have overlooked this discretion conferred upon them and
instead opted for a far too restrictive (and even unreasonable) interpretation of the
provisions to the extent where private defence is hardly adequate as a defence,
defeating the intention of the provision. The inconsistency between the judicial
interpretation and the intention of the Code framers is exemplified in the interpretation
of “reasonable apprehension” under Sections 100 and 102[xx]. Evidently, the local
courts have adopted a strict objective approach in determining “reasonable
apprehension”, ignoring its inherent ambiguity. This is in contrast to the current English
law that judges the nature of the danger wholly according to that of the accused’s
perception (purely subjective test).
“The law does not require a law-abiding citizen to behave like a coward when
confronted with an imminent unlawful aggression. As repeatedly observed by this
court, there is nothing more degrading to the human spirit than to run away in face of
danger. Right of private defense is thus designed to serve a social purpose and
deserves to be fostered within the prescribed limit[xxii].”
The court laid down ten guidelines where right of self-defence is available to a citizen,
but also warned that in the disguise of self-defence, one cannot be allowed to
endanger or threaten the lives and properties of others or for the purpose of taking
personal revenge. The apex court concluded by saying that a person who is under
imminent threat is not expected to use force exactly required to repel the attack and
his behaviour cannot be weighed on “golden scales.”
The Court declared their legal position under the following 10 guidelines[xxiii]:
Conclusion
In general, private defence is an excuse for any crime against the person or property.
It also applies to the defence of a stranger, and may be used not only against culpable
but against innocent aggressors.
The force used in defence must be not only necessary for the purpose of avoiding the
attack but also reasonable, i.e. proportionate to the harm threatened; the rule is best
stated in the negative form that the force must not be such that a reasonable man
would have regarded it as being out of all proportion to the danger[xxix].
The carrying of firearms and other offensive weapons is generally forbidden, but (1) a
thing is not an “offensive weapon” if it is not offensive per se and is carried only to
frighten; (2) a person does not “have it with him” if he merely snatches it up in the
emergency of defence.
The right of defence avails against the police if they act illegally, but the defender
cannot take benefit from a mistake as to the law of arrest or self-defence[xxx]. The
traditional rule is that even death may be inflicted in defence of the possession of a
dwelling.
The occupier of premises may use necessary and reasonable force to defend them
against a trespasser, or one reasonably thought to be a trespasser; and it seems that
even a licensee (such as a lodger) can eject trespassing strangers. It is a statutory
offence to set spring guns or mantraps, except in a dwelling house between sunset
and sunrise. It has not been decided whether the exception operates to confer an
exemption from the ordinary law of offences against the person. Such defences as
spikes and dogs are lawful if reasonable[xxxi]. Guard dogs must, by statute, be kept
under full control, except in private houses or on agricultural land.
Thus, we can see the right of private defence is very helpful in giving citizens a weapon
which in a case that it’s not misused is subject to certain restrictions, helps them
protect their and others’ lives and property.