PRIVATE DEFENCE BY SHRISHTI MISHRA@LEXCLIQ

                                                      PRIVATE DEFENCE

BY SHRISHTI MISHRA

Introduction

A private defenCe can generally be referred to as self-protection. Every democratic country provides its citizens with the said right as it is an established fact that self-preservation is the first duty of every living being. The right of private defence has been given to all Indian citizens by the virtue of sections 96-106 of the Indian Penal Code 1860 against the protection of either one’s body or property. These sections categorically lay down the extent of such rights. IPC has not defined the term ‘private defence’ and thus, the working definition that we come across today has been a work of the judiciary.

Right to Private defence under IPC

Right of private defence

In the normal course of life, if any harm befalls anyone’s body or property, the state is expected to provide aid to counter such harm. But there may be circumstances where the state may not be able to protect its subjects from such harm. It is in those exceptional circumstances that the use of necessary force by a person to protect his or someone else’s body or property is allowed. This endowment is known as the right of private defence. Any act done in the exercise of private defence, as prescribed by law, is an exception to criminal prosecution.

It is vital to understand that the right can only be exercised when there is an imminent threat to a person or property and there is no other alternative than the use of force. It is for the accused to understand that there is a reasonable apprehension of such an imminent threat. The accused needs to have an honest belief of the same through the acts of the aggressor and the same can be proved through the circumstances.

Another ingredient to be fulfilled for the invocation of such rights is that only reasonable and necessary force can be used against the aggressor. What constitutes a reasonable and necessary force depends upon the circumstances. An aggressor is a person who poses an imminent threat to one’s person or property.

The right of private defence cannot be said to be an offense 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 necessary for the purpose of defence. It is well settled that in a free fight, no right of private defence.

A person is absolved of all criminal responsibility, even if he causes death, only if:

  • The deceased was the actual assailant; and
  • Sections 100 and 103 cover the offence committed by the deceased which led to the use of the right of private defence.

 

When death is caused as a result of exercise of private defence

1. Private defence of the body

It has already been discussed that by the virtue of section 97, the right of private defence can be exercised against one’s person or someone else’s person and also against one’s property or someone else’s property that faces imminent danger. Even though the law establishes that only reasonable and necessary force can be used while exercising such right, there may be situations where such use of force may cause the death of the person against whom such force is used.

Sections100 and 103 of IPC lay down the conditions for when the person will be absolved of criminal prosecution when death is caused as a result of private defence.

Section 100 states the conditions when death is caused while defending a person. The only exception to this rule is section 99, which lays down that no right of private defence exists against a public servant in duty. The section lays down that if death or any harm is caused voluntarily to the assailant, the right of private defence will be exercised if one of the following conditions is fulfilled:

  • That the nature of the assailant’s assault is such that there is a reasonable apprehension of death as an otherwise consequence of such assault;
  • That the nature of the assailant’s assault is such that there is a reasonable apprehension of grievous hurt as an otherwise consequence of such assault;
  • That the assailant’s assault is inflicted with the intention of committing rape;
  • That the assailant’s assault is inflicted with the intention of gratifying unnatural lust;
  • That the assailant’s assault is inflicted with the intention to kidnap or abduct;
  • That the assailant’s assault is inflicted with the intention to wrongfully confine and it is apprehended that such confinement will bar the person from accessing public authorities for his release.

To invoke the application of such conditions, certain ingredients must be fulfilled by each circumstance that is in question. Those ingredients are as follows:

  • That the person exercising the right should not be the assailant.
  • There must be an imminent threat to one’s person.
  • There must not be an alternative to causing such harm.
  • There must not be a mode of escape.

In Yogendra Moraji vs State, the court emphasized the fact that when a person is confronted with such life-threatening circumstances, for the exercise of the right of private defense, it is important that there was no reasonable way of escaping such a situation and thus, death had to be caused. The principle has been derived from common law.

It is also important to know that section 102 lays down as to when such right commences and when it ends. The right commences as soon as a reasonable apprehension of danger to the body of a person arises, even though the offence is not yet committed. The right ends as soon as such an imminent threat retreats.

2. Private defense of property

The law also protects those who cause the death of a person while protecting one’s or someone else’s property. Section 103 states the conditions when death is caused while defending property. The only exception to this rule is section 99, which lays down that no right of private defense exists against a public servant in duty. The section lays down that if death or any harm is caused voluntarily to the assailant, the right of private defense will be exercised if one of the following conditions is fulfilled:

  • There is a robbery;
  • There is house-breaking by night;
  • There is mischief by fire committed on any tent, building, or vessel used as a dwelling house or as a place of custody of property;
  • There is theft, mischief, or house-trespass causing reasonable apprehension of death or grievous hurt unless such right is exercised.

In Jassa Singh v. the State of Haryana, the Supreme court held that the right of private defence of property will not extend to the causing of the death of the person who committed such acts if the act of trespass is in respect of open land. Only a house-trespass committed under such circumstances as may reasonably be caused death or grievous hurt is enumerated as one of the offences under Section 103.

Conclusion

Thus, from the above-mentioned provisions, I can be concluded that death while exercising the right of private defense can only be justified in certain circumstances mentioned by the law.

 

 

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