Discuss the scope of the right to private defence of the body under the penal code. Can an accused person rely on the plea of such private defence without specifically pleading it? Support your answer with the help of decided cases. [MPCJ 2011]
Ans. Right of private defence is essentially a defensive right and acknowledges the need of self-preservation because the vigilance of magistrate can never make up for the vigilance of each individual on his own behalf. But, it is equally important to mention that it is not punitive or retaliatory right.
Scope:- As per section 97 of the IPC, the right of private defence is available not only with respect to his own body but also with respect to the body of any other person against any offence affecting the human body including such act by person of unsound mind, minor etc. This makes the horizon of the right to private defence under Penal Code even broader than its counterpart under English law because thereof such right cannot be exercised to defend the stranger. Under English law, it is required that there must be some kind of relationship existing such as father and son, husband and wife, guardian and ward, master and servant etc before the right of private defence may be successfully exercised by someone.
Furthermore, according to section 100 of the IPC, the right to private defence of the body may be even exercised to the extent of voluntary causing death of the assailant, if the offence which occasions the exercise of the right falls under any of the following descriptions: –
Firstly – Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.
Secondly – Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.
Thirdly – An assault with the intention of committing rape. Fourthly -An assault with the intention of gratifying unnatural lust. Fifthly – An assault with the intention of kidnapping or abducting.
Sixthly – An assault with the intention of wrongfully confining a person, under such circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
Seventhly – An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.
But, the aforementioned scope of the right to private defence is not unfettered or absolute. This aspect is very much apparent from the opening words of Sec. 97, 100 and 101 etc which goes to state that exercise of private defence is subject to the restrictions mentioned in section 99 of the IPC. Such restrictions are as important as the right itself. The Hon’ble Apex Court has held in State Of U.P vs Ram Swarup AIR 1974 SC 1570 that the right of private defence is a right of defence not of retribution. It is available in the face of imminent peril to those who act in good faith and never who act under pre-meditated plan. The scope of right to private defence is circumscribed with following limitations:-
- There is no right of private defence against any act if done or attempted to be done by the public servant himself or under the direction of such public servant by someone else while acting in good faith under the colour of his office though such act or direction may not be strictly justifiable by law. However, the protection to public servant or those acting under their direction is not absolute. Such protection has its own exception in following circumstances-
- When act of public servant or those acting under their direction reasonably cause the apprehension of death or of grievous hurt to the victim.
- When the victim/accused does not actually know or he has no reason to believe that the act is done by public servant or under his direction.
- When those acting under the direction of the public servant does not state the authority or if he has the authority in writing does not produce the same on the demand of victim/accused.
- There is no right of private defence when there is time to have recourse to the protection of the public authority. The necessity of self-help disappears when accused had ample opportunity to have recourse to state authorities.
- Private defence does not extend to inflict more harm than it is necessary to inflict for the purpose of defence. The principle is that the force of repulsion must bear reasonable proportion to the force of aggression. The Hon’ble Apex Court in Mohinder Pal Jolly vs State of Punjab AIR 1979 SC 577 where the worker of the company threw stone and in response to that the owner of the company fired with revolver, had held that private defence was exceeded. But, at the same time, it is equally relevant to mention that the victim is not required to weight on golden scales in the heat of the moment the number of injuries required to disarm his assailants as held by Hon’ble Apex Court in Buta Singh vs The State Of Punjab AIR 1991 SC 1316.
The modes of establishing the plea of private defence:- Under section 101 of the Evidence act the burden of proof to establish all the ingredients of the offence with which accused is charged lies on the prosecution. But, section 105 of the Evidence Act is a special provision and mandates that if accused in any particular case raises the defence of general exception then burden is on him to prove the existence of the circumstances which constitute general exception. At the same time, section 105 puts an obligation on the court to presume the absence of such circumstances. Thus, if accused takes plea of private defence then he is duty bound to show the existence of circumstances bringing the case within the general exception as pleaded. To lay down such foundation, as held by Hon’ble Apex Court in Salim Zia vs State Of U.P AIR 1979 SC 391 the burden on the accused person is not as onerous as lies on the prosecution and he may discharge his onus of proof by establishing on a scale of mere preponderance of probabilities either by laying a basis for exercise of private defence in the cross-examination of prosecution witnesses or by adducing the defence evidence. Moreover, even if no plea is taken but circumstances are borne out from the record of the case to raise reasonable doubt in the mind of the Court then also the accused is entitled the benefit of the general exception.
And Once on the aforesaid yardstick the necessary circumstances are proved then under section 6 of the IPC the court is also obliged to follow that every definition of offence, illustration etc shall be understood subject to ‘General Exceptions’ provided in Chapter IV of the act. Thus, undoubtedly, the accused can rely on the plea of private defence without specifically pleading it if necessary, foundation is available on the record by way of cross-examination of the opposite party etc.