What is private defence? When does the right of private defence of the body extend to cause death? [MPCJ 2016]
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. As per section 97 of the IPC, the right of private defence is available not only with respect to his own body and property but also with respect to the body and property of any other person respectively against any offence affecting the human body and a few specified offences affecting the property. All acts done in exercise of right of private defence is justified under section 96 of IPC and exonerated from criminal consequences.
Extension of right of private defence of the body to cause death:- Under 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.
Extension of right of private defence of the property to cause death:- Likewise, under section 103 of the IPC, the right to private defence of the property 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 :-
Secondly —House-breaking by night.
Thirdly —Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property.
Fourthly —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.
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 103 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.