Sei sulla pagina 1di 25

0

INDIAN PENAL CODE


(CRIMINAL LAW –I)

TOPIC: DEFENCE OF RIGHT OF PRIVATE DEFENCE


--- (Sec. 96-106)

SUBMITTED BY: SUBMITTED TO:


NAME: GANESH OJHA Dr. PAWAN KUMAR MISHRA
COURSE: B.A. LL.B. FACULY
ENROLLMENT: CUSB1613125017 LAW AND GOVERNANCE
SEMESTER : 3ND CUSB
1

DECLARATION

This is to certify that the project titled “DEFENCE OF RIGHT OF PRIVATE


DEFENCE” submitted by GANESH OJHA has been successfully produced under
the guidelines of (Proff.) DR. PAWAN KUMAR MISHRA, with the help of class
notes and text books on Indian Constitution and further help from online resources.

Date of Submission:-…………………… GANESH OJHA


B.A. LL.B (Hons.)
3nd SEMESTER
2

CONTENT

1. List of Cases
2. Abbreviations and Acronyms 4
3. Acts and Statutes 4
5. Introduction 5
6. Research Methodology
7. Provision under Sections (96-106) 6
8. Its Objective 9
9. Right of Private Defence 10
9.1. Defence of person 10
9.2. Defence of property 11
9.3. Self Defence under English Law 12
10. Private Defence against unsound mind 13
11. Private Defence against public servant 13
12. Plea of Self-Defence 15
13. Scope of Right of Private Defence 16
14. Judicial Interpretation- Relevant Cases 18
15. Proposals for Reform 20
16. Conclusion 22
17. Bibliography 24
3

List of Cases

1. Jagdish v. State of Rajasthan AIR 1979 SC 1010


2. Biran Singh v. State of Bihar 1975 SCC (Cri) 454
3. Parichhat v. State of Madhya Pradesh (1972) 4 SCC 694
4. Reg. v. Rose (1884) 15 Cox CC 540
5. Jaipal v. State of Haryana AIR 2000 SC 1271
6. Ram Rattan v. State of Uttar Pradesh (1977) SCC (Cri) 85
7. Subramani v. State of Tamil Nadu AIR 2005 SC 1983
8. Ishwar Singh v. State of Rajasthan 1973 Cr LJ 811
9. Pusu v. Emperor AIR 1914 Nag 7
10. Kesho Ram v. Delhi Administration AIR 1974 SC 1158
11. Mithu Khan v. State of Rajasthan AIR 1969 Raj 121
12. Puran Singh v. State of Punjab AIR 1975 SC 1674
13. Ramesh Chandra v. State AIR 1969 Tripura 53
14. Panna Lal v. State of Madhya Pradesh AIR 2015 SC 3298
15. Munney Khan v. State of Madhya Pradesh AIR 1971 SC 1491
16. Bhaja Pradhan v. State of Orissa 1976 Cr LJ 1347
17. Baljit Singh v. State of Uttar Pradesh AIR 1976 SC 2273
18. Rodriguez v. United States 135 S.Ct. 1609
19. Somnath Das v. State of Orissa AIR 1969 Ori 138
20. Arjun v. State of Maharashtra AIR 2012 SC 2181
21. Deo Narain v. State of Uttar Pradesh AIR 1960 SC 67
22. Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67
23. Ram Narain v. State of Uttar Pradesh AIR 1973 SC 473
24. Jai Dev v. State of Punjab AIR 1963 SC 340
4

ABBREVIATIONS AND ACRONYMS

1. SC…………………………………………………Supreme Court
2. SCC ……………………………………………….Supreme Court Cases
3. A.I.R. ……………………………………………..All India Reporter
4. A.L.J ……………………………………...………Administrative Law Judge
5. I.P.C……………………………………………… Indian Penal Code

STATUTE

1. INDIAN PENAL CODE (45 OF 1860)


2. THE CRIMINAL LAW (AMENDMENT) ACT, 2013(13 OF 2013)
5

INTRODUCTION

A state is under obligation to protect life, limb and property of its subjects. But no state, howsoever
resourceful and organized it may be, will be in a position either to depute a policeman to every
individual for protecting his body and property or to dog the steps of every person who unlawfully
poses threat to body and property of others. A state can never extend its help to all at all times and
in all cases. In such a situation, an individual, in pursuit of his basic instinct of self-preservation, will
be forced to resort to all the possible means at his command to protect himself and his property. He
is neither expected to surrender nor to flee, but to hold his ground and to quell the imminent threat
and to repel it.1 He is entitled to stay and overcome the threat. He is expected to use force that is just
required to counter the danger or until the state comes to his rescue. An unrestricted right to defend
will inevitably result into “Might is Right” rule and thereby will create serious law and order
problems. But the right is essentially of defence not of retribution as,
“A man is justified in resisting by force anyone who manifestly intends, and endeavours by violence
or surprise to commit a known felony against either his person, habitation or property. In these cases
he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed
pursue his adversary until the danger is ended and if in a conflict between them he happens to kill
his attacker, such killing is justifiable.”2
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.”
The whole provisions dealing with the defence of right of private defence can be categorized as
follows:-

1
Jai Dev v. State of Punjab AIR 1963 SC 612
2
JWC Turner (Russel on Crime, 11th Edn.,1958, Vol. I) p. 491
6

of Body (Ss.
100,101,102,106)
Private Defence
Of Property (Ss.
103,104,105)

PROVISION UNDER SECTIONS 96-106

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.

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-
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 for criminal trespass.

Section 98: Right of private defence 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
7

doing that act, or by reason of any misconception on the part of that person, every person has the
right of private defence against that act which he would have if the act were that offence.

Section 99: 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 colour of his office, though that act, may not be strictly justifiable by law.
The right must be exercised in proportion to harm to be inflicted. In other words, there is no right of
private defence:
1. Against the acts of a public servant; and
2. Against the acts of those acting under their authority or direction;
3. When there is sufficient time for recourse to public authorities; and
4. 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
Section 100: specifies when the right of private defence of the body extends to causing death: –

Section 101: 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.

Section102: 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.

Section103: specifies when the right of private defence of property extends to causing death 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: tells us when such right extends to causing any harm other than death:-
8

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. 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.

Section105 prescribes the commencement and continuance of the right of private defence of
property.

Section 106 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.
9

ITS OBJECTIVE

The purpose behind such provision in Indian Penal Law is to protect the person from threat to their
life and property and it could be stated as follows:-
1. Society is able to protect private persons against unlawful attacks upon their person and
property in most cases but not in all cases, therefore, it is necessary to empower the citizens
to defend themselves when necessary,
2. Where the aid of society cannot be obtained, individual may do everything necessary to
protect himself and his property;
3. It gives authority to a man to use necessary force against an assailant or wrongdoer for the
purpose of protecting another’s body and property.
4. Not to make responsible and answerable in law for his deeds for such purpose.
5. To recognize the self-help principle of criminal law which is necessary for protection of
one’s life, liberty and property.
6. To meet exigencies where no help from the state authorities could be asked because of no
time, right of private defence of body and property has been given to every individual.
10

RIGHT OF PRIVATE DEFENCE

RIGHT OF PRIVATE DEFENCE AGAINST BODY

Under Section 100 of IPC, a man is authorized who is under a reasonable apprehension that his life
is in danger or his body in risk of grievous hurt, to inflict death upon his assailant either when the
assault is committed or directly threatened. But the apprehension must be reasonable and not
imaginary one. The injury inflicted must also be proportionate to and appropriate with the quality
and character of the act it is intended to meet.

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: —

1. Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;
2. Such 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 that 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 acid or attempting to throw acid.

APPREHENSION OF DEATH or GRIEVOUS BODILY HARM:

An apprehension in the mind of the accused that death may be caused to him by assault of the
aggressor.
11

In Dhiria Bhavji3 case, it was held that there can be no right of private defence against such
apprehension unless physical violence from the opponent is apprehended. In case of assault with
fists and hands it has been held that there can be no reasonable apprehension of grievous hurt to
either of the parties and if one of them uses knife, he takes an undue advantage and acts in an
unusually cruel manner and is not entitled to benefit of the right of private defence.4

In Amjad Khan v. State5, a communal riot broke between some Sindhi refugees and the local
Muslims. The appellant stated that the mob broke into the building where his brother’s shop was
located and looted it. The mob was beating on his doors where he fired two shots which caused the
death of a man and injured three others. The Supreme Court held that these circumstance in which
the appellant was placed were amply sufficient to give him a right of private defence of the body,
even to the extent of causing death. Section 99 IPC clearly demonstrates that ‘as soon as reasonable
apprehension of danger to the body arises’, right to private defence evidences.

RIGHT OF PRIVATE DEFENCE OF PROPERTY:

The right of private defence of property extends to voluntarily causing of death of the assailant in
cases of danger to property, resulting from any one of the offences set out in Section 103, namely,

1. robbery,
2. house-breaking by night,
3. mischief by fire to any building, tent or vessel used for the purpose of dwelling or custody
of property,
4. theft,
5. mischief or house- trespass under such circumstances as may reasonably cause the
apprehension that death or grievous hurt may be caused.

In Nathan vs. State of Madras6, the Supreme Court held that since it did not appear that the harvesting
party was armed with any deadly weapons and there could not have been any fear of death or
grievous hurt on the part of the appellant and his party, under Section 104, IPC their right was limited
to the causing of any harm other than death. The accused, though were exercised that right when
they caused the death of one of the harvesting party and hence their case fell under Exception 2 to

3
(1963) 1 Cri. L.J. 431
4
Nihal Singh, A.I.R. 1935 Pesh. 155
5
A.I.R. 1952 SC 165
6
A.I.R. 1973 SC 665
12

Section 300, IPC, and they well be liable for culpable homicide not amounting to murder under
Section 304, IPC and not for murder.

SELF DEFENCE UNDER 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 inumerates two elements
which are necessary to constitute self-defence, namely

1. Accused does not provoke difficulty, and


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

Glanville Williams’ analysis of the elements is more comprehensive:-

1. That the force is threatened against the person,


2. That the person threatened is not the aggressor,
3. That danger of harm is imminent,
4. That 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
5. That the above beliefs are reasonable.
13

PRIVATE DEFENCE AGAINST UNSOUND MIND

Section 98 assumes that the right to private defence from its very nature admits of no exception since
it is the right of preservation of one’s life and property as also of another’s life and property against
the world at large. Section 98 provides that the right of private defence extends even against an
offence committed be a person who might not be responsible in law for his deeds by reason of the
doer being a man of unsound mind (section 84), or because of want of maturity of understanding
(sections 82 and 83), or by reason of any misconception on the part of that person (sections 76 and
79).

Illustration: If A, an insane person, attempts to kill B, A is not guilty of any offence (section 84).
But B will have the same right of private defence against A which he would have, were B sane.

PRIVATE DEFENCE AGAINST PUBLIC SERVANT

Section 99 lays down the conditions and limits within which the right of private defence can be exercised.
The section gives a defensive right to a man and not an offensive right. The first two clauses provide that the
right of private defence cannot be invoked against a public servant or a person acting in good faid in the
exercise of his legal duty provided that the act is not illegal. Clause three restricts the right of private defence,
if there is time to seek help of public authorities and must be exercised in proportion to the harm to be inflicted.
According to Section 99 of the Indian Penal Code, there is no right of private defence:
(i) Against the acts of a public servant acting in good faith,
(ii) Against the acts of those acting under their authority or direction,
(iii) Where there is sufficient time for recourse to public authorities,
14

(iv) 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.

GOOD FAITH:
(i) Good faith plays a vital role in case of right of private defence against public servant. Good faith
does not require logical infallibility (accuracy) but due care and caution as defined under section
52 of the Code. A police officer acting bona fide under the colour of his office, should he arrest
a person even though he has no authority to arrest under the particular circumstances of the case,
the person so arrested has no right of private defence.
(ii) In case, the act of the public servant is ultra vires, the right of private defence can be exercised
against him. The act of an officer of the court who acts under a time-expired warrant and attaches
property, cannot be said to have done according to law and in good faith.

Kesho Ram v. Delhi Administration 7


In this case, the appellant gave a blow to an inspector of the Delhi Municipal Corporation who, in discharge
of his duty, had gone to collect the milk-tax (as provided under section 161 of the Corporation Act) and had
seized his buffalo. The appellant was convicted for assaulting the Inspector. The appellant’s plea was rejected
on the ground that the attempt to recover tax due, by seizer of the animal did not lack good faith.
The supreme Court held that an immunity under Section 99, IPC can be claimed by a public servant, if he
acts in good faith and under the colour of his office, even though the legality of eh act could not otherwise be
sustained.

7
1974 AIR 1974 SC 1158
15

PLEA OF SELF DEFENCE

The onus of establishing plea of right of private defence is on the accused though he
is entitled to show that this right is established or can be sustained on the prosecution
evidence itself. The private defence is purely preventive and not punitive or
retributive.

In Ishwar Singh v. State of Rajasthan8, the Apex Court held that in order to invoke the
right of defence to person or property, the accused must prove that he was placed in
such a dangerous situation that to protect himself he had to use reasonable force.

In Jaipal v. State of Haryana9, the Apex Court held that an aggressor cannot claim the
right of private defence.

FACTS OF THE CASE:

(i) The accused persons were armed with the dangerous weapons and no one
from complaint party was armed with any dangerous weapons shows that
the accused party alone had the intention to attack but not the complaint
party.
(ii) Accused No. 1 gave gandasa blow to the deceased, which landed on head
and the second blow cut his finger and then accused Nos. A-(2) and A-(3)
dealt blows with their lathis on vital parts.

HELD:

The Apex Court held that the complainant was not the aggressor but the appellants
were aggressors. The appeal was accordingly dismissed.

8
1973 Cr LJ 811
9
AIR 2000 SC 1271
16

SCOPE OF THE RIGHT OF PRIVATE DEFENCE

COMMENCEMENT: As per the provision of Section 105 of the IPC, the right of private defence
of body commences as soon as a reasonable apprehension of danger to the body arises from an
attempt or threat to commit an offence. In other words, the law confers upon a person a right of
defending himself against both actual as well as threatened dangers. It is not necessary that there
should be an actual commission of the offence in order to give rise to the right of self-defence.

The Right of private defence of property commences when a reasonable apprehension of danger to
the property commences. The right of private defence of property against theft continues till the
offender has affected his retreat with the property or either the assistance of the public authorities is
obtained, or the property has been recovered. 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 of as long as the fear of instant death or of instant hurt or of instant personal restraint
continues.

CASE LAW: Nga Chit Tin v. The King10,

The accused left his hut after being threatened by the deceased. Sometime afterwards the accused
again returned to the hut on his own free will armed with a heavy stick and struck the same on the
head of the deceased, which resulted in death. On these facts the Gangoon High Court held that when
the accused was able to leave the hut unhurt, there was no question of reasonable apprehension in
his mind. But when her again came back to the hut and struck the deceased, the exercise of the right
of private defence by the accused was not justified because the deceased against the accused but the
apprehension of danger to the body of the accused did not continue when he left the hut.

CONTINUANCE:

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. The right of private

10
1939 Cri. L.J. 725
17

defence of property against house-breaking by night continues as long as the house-trespass which
has been begun by such house-breaking continues.
 The right to self-defence of body ends as soon as the danger has passed out. There is no right
in those circumstances where the apprehension of danger did not continue.
 The right of private defence of property against theft continues till:
(i) The offender has effected his retreat with property,
(ii) The assistance of public authorities is obtained,
(iii)The property has been recovered.11 Since the primary object of the right is to enable the
owner to recover his property, therefore, the right exists till the purpose has been attained.
 The right of private defence against robbery continues so long as the offender causes or
attempts to cause to any person death, hurt or wrongful restraint or as long as the fear of
instant death or of instant hurt or of instant personal restraint continues.
 The person in possession of the property has the right of private defence so long as the
trespass continues.
In case of Hukam Singh12, the accused forcibly took two carts loaded with sugarcane through
the field of M in which there were standing crops, in transporting the sugarcane to the public
passage running by the side of M’s field, the trespass had not come to an end and M had the
right to prevent the accused from continuing to commit the criminal trespass for whatever
short distance they had still to cover before reaching the public pathway. It held that the
accused’s party could not get out of the field without committing further criminal trespass,
did not give them any right for insisting that they must continue the criminal trespass; they
had to abide by the direction of M.

11
Gour, H.S. (Penal Law of India, 7th Edn., Vol. 1) pp. 490-91
12
A.I.R. 1961 S.C. 1541
18

JUDICIAL INTERPRETATION- RELEVANT CASES

DARSHAN SINGH V. STATE OF PUNJAB13

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

13
A.I.R. 2010 S.C. 1682
19

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.

VISHWANATH vs. STATE OF UTTAR PRADESH:14

FACTS:

The deceased, Gopal was married to the sister of the appellant and was living with her family. They
did not, however, get on well together and the deceased moved into a separate quarter. Gopal was
keen to take away his wife and asked Banarsi and his sons to help him bringing back his wife. Banarsi
also arrived and then all four of them went to bring back the girl. Banarsi and his two sons stood
outside while Gopal went in and came out of the quarter dragging his reluctant wife behind him.

14
A.I.R. 1960 SC 67
20

The appellant was also there and shouted to his father that Gopal was adamant. Badri thereupon
replied that if Gopal was adamant, he should be beaten. On this the appellant took out a knife from
his pocket and stabbed Gopal once. Steps were taken to revive Gopal but without success.

HELD:

The sessions judge held that the appellant had the right of private defence of person and that this
right extended even to the causing of death of Gopal as it arouse on account of an assault on his
sister with intent to abduct her, and therefore, the appellant was acquitted.

The acquittal of the appellant was set aside by the Allahabad High Court on the ground that the case
was not covered by the fifth clause of Section 100, and that the right of private defence of person in
this case did not extend to the voluntary causing of death to the assailant and, therefore, it was
exceeded. The appellant was therefore, convicted under Section 304 Part II of the IPC and sentenced
to three years’ rigorous imprisonment.

PROPOSALS FOR REFORM

The fifth Law Commission of India, in its report on the Indian Penal code, proposed some structural
and substantive reforms in the law relating to the right of private defence. A few prominent amongst
them are mentioned here below:

1. It proposed two reforms of significant consequences in Paragraph 1 of Section 99, which sets
restrictions on the right of private defence of individual against acts of a public servant.
2. It suggested the deletion of Paragraph 3 of s 99, which deprives a person of his right of private
defence if he had time to have recourse to public authorities to seek protection before he
exercised his right of private defence.
3. It recommended the deletion of an assault with the intention of abducting mentioned from
fifthly of s 100 on the ground that abduction is an auxiliary act not punishable by itself.
21

4. It suggested the expansion of the scope of thirdly of s 103, which enumerates the situations
that justify causing of voluntary death in the exercise of the right of private defence of
property.
22

CONCLUSION

The law of private defence is based on two cardinal principles namely:

1. Everyone has the right to defend his own body and property, as also another’s body and
property.
2. The right cannot be applied as a pretence for justifying aggression for causing harm to
another person, nor for causing more harm than is necessary to inflict for the purpose of
defence.

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. 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 gun 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.
23

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.
24

BIBLILGRAPHY

BOOKS:

1. Bhattacharya, Prof. T ,( Indian Penal Code, 5th Edition, Central Law Agency, Allahabad,
2007).
2. Tandon, Mahesh Prasad, (Indian Penal Code, Allahabad Law Agency, Faridabad, 2006).
3. Gaur, k. D ,( Indian Penal Code, 3RD Edition , Universal Law Publishing Co. , Delhi,
2008).
4. K. I. Vibhute (P.S.A Pillai’Criminal Law, LexisNexis, 12th Edi., 2004),
5. Prof. S.N. Misra (Indian Penal Code, Central Law Publications, 12th Edi., 2004,
Allahabad)

ONLINE RESORCES

(1.) WWW.INDIANKANOON.ORG (LAST VISITED: 5TH NOVEMBER, 2017)


(2.) WWW.MANUPATRA.COM (LAST VISITED: 4TH NOVEMBER, 2017)
(3.) WWW.WIKIPEDIA.ORG (LAST VISITED: 6TH NOVEMBER, 2017)
(4.) WWW.LAWOCTOPUS.COM(LAST VISITED: 7TH NOVEMBER, 2017)