The Right of Private Defence

Indian penal code,1860 lays down the various types of offences and their punishments. Every offence has different punishment according to the gravity of the offence and its impact in the society. Section 76 to 106 of the Indian penal code stipulates the acts which are not offences according to the eyes of law. These are known as the general exceptions of IPC and Right to private defense is one among them. it is mentioned under section 96 of IPC and it lays down that nothing is an offence if it is done in the exercise of the right of private defense.

Section 97 of the code defines the things to which the right of private defence is applicable. every one has right to protect his body or body of any person from any force or harm causing  to it by any person, by applying the use of force. Secondly the section says that person can use this right to protect his property or property of any other person from the offences such as theft,robbery,mischief or criminal trespass.

The right of private defence of property is, therefore, comparatively restricted in the sense that it is available only in cases of the four offences mentioned above and their attempts. Consequently, this right is not available, for example, for an offence under section 24 of the Cattle Trespass Act, 1871. The offences of theft, robbery, mischief and criminal trespass have been defined under sections 378, 390, 425 and 441 of the Code respectively.

It has been held by the Gauhati High Court in Akonti Bora v. State, that while exercising the right of private defence of property the act of dispossession or throwing out a trespasser includes the right to throw away the material objects also with which the trespass has been committed.

Section 99 stipulates the acts against which the right of private defence doesn’t exist. whenever an act is done or attempted to be done by a public servant who acts in good faith under colour of his office, there exists no right of private defence against such act, if there is no reasonable apprehension of death or of grievous hurt from that act, though that act may not be strictly justifiable by law. In such cases good faith, which has the same meaning as stated under section 52 of the Code, on the part of the public servant must be proved.The second para gives a similar privilege to one who acts under the direction of a public servant though that direction may not be strictly justifiable by law. The third para lays down the important principle that the right of private defence does not exist in such cases where there is time to have recourse to the protection of the public authorities. The purpose behind this provision is to check such gross misuse of this right wherein everyone would try to take the law in his own hands even though there is enough time to seek the help of public authorities.

Private defence is for the protection of human body or property when those are in danger. In practical senario,it is very difficult to prove that a particular act comes under the definition of private defence. That is because the burden of proving private defence is for the party who is calming it. He has to prove that in preponderance of probability. But it can be exercised in the situations mentioned above and if the ingredients of private defence are present, the law will protect the person from any punishment. It is one of the important defence in IPC and this right is there in almost all the legal systems in the world.

 

 

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