Introduction

Sections 96 to 106 of the penal code state the law relating to the right of private defence of
person and property. The provisions contained in these sections give authority to a man to
use necessary force against an assailant or wrong-doer for the purpose of protecting one’s
own body and property as also another’s body and property when immediate aid from the
state machinery is not readily available; and in so doing he is not answerable in law for his
deeds.

Self-help is the first rule of criminal law. The right of private defence is absolutely
necessary for the protection of one’s life, liberty and property. It is a right inherent in a
man. But the kind and amount of force is minutely regulated by law. The use of force to
protect one’s property and person is called the right of private defence.

150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of private
defence in his draft code with the ambitious project of encouraging a ‘manly spirit’ among
the ‘natives’. The ideal Indian would stand his ground in the face of danger and not hesitate
to defend his own body or property or that of another. He would respond with defensive
force to prevent certain crimes, even to the extent of causing death. As a general idea, the
right of private defence permits individuals to use defensive force which otherwise be
illegal, to fend off attacks threatening certain important interests. Like the defence of
necessity, the right of private defence authorizes individuals to take the law into their own
hands.

Private Defence: Meaning And Types

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.

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. Thus, there
should be a reasonable belief that the danger is imminent and that force must be used to
repel it.

Nature Of The Right

It is the first duty of man to help himself. The right of self-defence must be fostered in the
citizens of every free country. The right is recognized in every system of law and its extent
varies in inverse ratio to the capacity of the state to protect life and property of the citizens.
It is the primary duty of the state to protect the life and property of the individuals, but no
state, no matter how large its resources, can afford to depute a policeman to dog the steps
of every rouge in the country. 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.

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. Take away this right and
you become, in so doing, the accomplice of all bad men.” This right is based on two
principles,

 It is available against the aggressor only, and

 The right is available only when the defender entertains reasonable apprehension.

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

 If the deceased was the actual assailant, and

 If the offence committed by the deceased, which occasioned the cause of the
exercise of the right of private defence of body and property falls within anyone of
the six or four categories enumerated in Sections 100 and 103 of the penal code.

Section 97 talks about Right of private defence of the body and of Property: – Every person
has a right, subject to the restrictions contained in Section 99, to defend-

First-His own body, and the body of any other person, against any offence affecting the
human body;

Secondly-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 for criminal
trespass.

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.

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. 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:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or direction;
 When there is sufficient time for recourse to public authorities; and
 The quantum of harm that may be caused shall in no case be in excess of harm that
may be necessary for the purpose of defence.

Section102 is very important as it deals with the commencement and continuance of the
right of private defence of the body:
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 apprehension of danger must be reasonable, not fanciful.
For example, one cannot shoot one’s enemy from a long distance, even if he is armed with
a dangerous weapon and means to kill. This is because he has not attacked you and
therefore there is no reasonable apprehension of attack. In other words, there is no attack
and hence no right of private defence arises. Moreover the danger must be present and
imminent.

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.
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.

Private Defence In Various Legal Systems

English Law

As the common law system does not provide a statutory definition of self-defence, it is
often the opinions of legal authorities that are relied upon. Black’s Law Dictionary
enumerates two elements that are necessary to constitute self-defence, namely:

 Accused does not provoke difficulty, and

 There must be impending peril without convenient or reasonable mode of escape.

On the other hand Glanville Williams’ analysis of the elements is more comprehensive: –

 The force is threatened against the person,

 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,
 The person threatened must actually believe that a danger exists, that the use of force
is necessary and that the kind and amount of force being used is required in the
circumstances, and that the above beliefs are reasonable[xviii].

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.

 Requirement of reasonableness (a reasonable and honest belief is essential),

 Only that amount of force should be used which reasonably appears necessary to
prevent the threatened harm.
Thus, it can be seen that in the various legal systems of the world, there are certain common
established principles pertaining to self-defence.

Private Defence In Various Legal Systems

English Law

As the common law system does not provide a statutory definition of self-defence, it is
often the opinions of legal authorities that are relied upon. Black’s Law Dictionary
enumerates two elements that are necessary to constitute self-defence, namely:

 Accused does not provoke difficulty, and

 There must be impending peril without convenient or reasonable mode of escape.

On the other hand Glanville Williams’ analysis of the elements is more comprehensive: –

 The force is threatened against the person,

 The person threatened is not the aggressor,
 The danger of harm is imminent,
 The force is unlawful,
 The person threatened must actually believe that a danger exists, that the use of force
is necessary and that the kind and amount of force being used is required in the
circumstances, and that the above beliefs are reasonable[xviii].

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.

 Requirement of reasonableness (a reasonable and honest belief is essential),

 Only that amount of force should be used which reasonably appears necessary to
prevent the threatened harm.
Thus, it can be seen that in the various legal systems of the world, there are certain common
established principles pertaining to self-defence.

Judicial View on Private Defence

The protection of life and property is axiomatic in every civilized society and because it
is impossible for the State to do so on every occasion – as law enforcement officers cannot
be omnipresent, the individual is given the right of private defence. The right of private
defence legally accords to the individuals the right to take reasonably necessary measures
to protect themselves under special circumstances. Notably, on the execution of the private
defence provisions in the Penal Code, the framers said “we leave it still in a very imperfect
state…we are inclined to think that it must always be one of the least exact parts of every
system of criminal law.” This suggests that they recognized the necessity for latent
ambiguity to allow judges the flexibility to read and apply the provisions so as to achieve
fairness.

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. 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).
Darshan Singh v. State of Punjab

The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It
observed that a person cannot be expected to act in a cowardly manner when confronted
with an imminent threat to life and has got every right to kill the aggressor in self defense.
A bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting
a person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature
clearly intended to arouse and encourage the spirit of self-defense amongst the citizens,
when faced with grave danger.“ 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.”

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:

1. Self-preservation is a basic human instinct and is duly recognized by the criminal

jurisprudence of all civilized countries. All free, democratic and civilized countries
recognize the right of private defense within certain reasonable limits.
2. The right of private defense is available only to one who is suddenly confronted
with the necessity of averting an impending danger and not of self-creation.
3. A mere reasonable apprehension is enough to put the right of self-defense into
operation. In other words, it is not necessary that there should be an actual
 commission of the offence in order to give rise to the right of private defense. It is
enough if the accused apprehended that such an offence is contemplated and it is
likely to be committed if the right of private defense is not exercised.
4. The right of private defense commences as soon as a reasonable apprehension arises
and it is co-terminus with the duration of such apprehension.
5. It is unrealistic to expect a person under assault to modulate his defense step by step
with any arithmetical exactitude.
6. In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.
7. It is well settled that even if the accused does not plead self-defense, it is open to
consider such a plea if the same arises from the material on record.
8. The accused need not prove the existence of the right of private defense beyond
reasonable doubt.
9. The Indian Penal Code confers the right of private defense only when the unlawful
or wrongful act is an offence.
10. A person who is in imminent and reasonable danger of losing his life or limb may,
in exercise of self defense, inflict any harm (even extending to death) on his assailant
either when the assault is attempted or directly threatened.

Yogendra Moraji v. State

The Supreme Court discussed in detail the extent and the limitations of the right of private
defence of body. One of the aspects emphasized by the court was that there must be no safe
or reasonable mode of escape by retreat for the person confronted with an impending peril
to life or of grave bodily harm except by inflicting death on the assailant. This aspect has
create quite a confusion as it indirectly suggests that once should first try to see the
possibility of a retreat than to defend by using force, which is contrary to the principle that
the law does not encourage cowardice on the part of one who is attacked. But another
viewpoint is that this retreat theory in fact is an acceptance of the English common law
principle of defence of body or property under which the common law courts always
insisted to look first as to whether the accused could prevent the commission of crime
against him by retreating.

Nand Kishore Lal v. Emperor

Accused who were Sikhs, abducted a Muslim married woman and converted her to
Sikhism. Nearly a year after the abduction, the relatives of the woman’s husband came and
demanded that she return. The accused refused to comply and the woman herself expressly
stated her unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives
attempted to take her away by force. The accused resisted the attempt and in so doing one
of them inflicted a blow on the head of the woman’s assailants, which resulted in the latter’s
death. It was held that the right of the accused to defend the woman against her assailants
extended under this section to the causing of death and they had, therefore, committed no
offence.

Mohinder Pal Jolly v. State of Punjab

Workers of a factory threw brickbats from outside the gates, and the factory owner by a
shot from his revolver caused the death of a worker, it was held that this section did not
protect him, as there was no apprehension of death or grievous hurt.

Mithu Pandey v. State

Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of
fruit by labourers from the trees that were in the possession of the accused persons who
protested against the act. In the altercation that followed one of the accused suffered
multiple injuries because of the assault. The accused used force resulting in death. The
Patna High Court held that the accused were entitled to the right of private defence even to
the extent of causing death.
Jassa Singh v. State of Haryana

The Supreme Court held that the right of private defence of property would not extend to
the causing of the death of the person who committed such acts if the act of trespass is in
respect of an open land. Only a house trespass committed under such circumstances as may
reasonably caused death or grievous hurt is enumerated as one of the offences under
Section 103.

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 defence is allowed only when it is immediately necessary-against threatened violence.

A person who acts under a mistaken belief in the need for defence is protected, except that
the mistake must be reasonable. In principle, it should be enough that the force used was
in fact necessary for defence, even though the actor did not know this; but the law is not
clear. There is no duty to retreat, as such, but even a defender must wherever possible make
plain his desire to withdraw from the combat. The right of private defence is not lost by
reason of the defender’s having refused to comply with unlawful commands.

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.

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. 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. 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.