Private Defence: A Legal Guide

 

Private Defence

Right to Private Defence

Private defence means fighting back to protect one's body or one's property.
Nothing is an offence that is done in the exercise of private defence.
[As per the laws of Right of Private Defence]

Example:

If someone attacks a person with a weapon, the person can also attack him with a weapon with reasonable force in self defence.

But if the front is unarmed then the person can't hit the opponent with a weapon.

Law says:

One can harm someone in self defence, only as much as the opposition’s possibility to harm him/her.

Some more examples with different scenarios:

1. If someone forcibly enters the house during night time with an intention to set the house on fire or if someone breaks into the house for committing a theft or robbery, etc. then the owner or people in the house can use reasonable force to protect themselves and their house in their self defence.

2. If someone is in immense danger to their life because of someone’s actions, he/she can hurt the wrongdoer(s) in self defence. 

Meanwhile, if it results in the attacker’s death, it will not be held as murder.

3. During the rape, if a woman beats the rapist and kills him in order to protect herself from forceful sexual offence being committed by the person trying to rape her then it will not be considered murder.

4. If someone has been kidnapped, then in order to save his life, he kills the kidnapper, then he will not be charged for an offence of murder.

Rights of Self Defence

Rights of self/private defence are given under the sections of IPC (Indian Penal Code)

1. Things done in private defence

2. Right to private defence of the body and of property

3. Right of private defence against the act of a person of unsound mind, 

4. Acts against which there is no right of private defence

5. When the right of private defence of the body extends to causing death 

6. When such right extends to causing any harm other than death 

7. Commencement and continuance of the right of private defence of the body 

8. When the right of private defence of property extends to causing death 

9. When such right extends to causing any harm other than death. 

10. Commencement and continuance of the right of private defence of property.

11. Right of private defence against deadly assault when there is a risk of harm to an innocent person.

Section-96 to Section-106 of IPC (Indian Penal Code) talks about Self Defence Rights

According to Section-96 of IPC

Things done in private defence:

Nothing is an offence that is done in the exercise of the right of private defence. 

According to Section-97 of IPC

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.

Firstly

His own body, and the body of any other person, against any offence affecting the human body; 

Secondly

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 or criminal trespass. 

According to Section-98 of IPC

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

Illustrations 

(a) Under the influence of madness, Z attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane. 

(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception. 

According to Section-99 of IPC

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. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. 

Extent to which the right may be exercised:

The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1

A person is not deprived of the right of private defence against an act done or attempted to be done, by a public servant, as such, unless he knows or has reason to believe that the person doing the act is such a public servant. 

Explanation 2

A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

According to Section-100 of IPC

When the right of private defence of the body extends to causing death:

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 (aggressor), if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:

1. Such an assault which may reasonably cause the apprehension that death will otherwise be the consequence of such assault.

2. Such an assault which 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 which 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 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.

According to Section-101 of IPC

When such right extends to causing any harm other than death:

If the offence is 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. 

According to Section-102 of IPC 

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. 

According to Section-103 of IPC

When the right of private defence of property extends to causing death:

The right of private defence of property extends, under the restrictions mentioned in Section-99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:

1. Robbery 

2. House-breaking by night

3. 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.

4. 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. 

According to Section-104 of IPC

When such right extends to causing any harm other than death:

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 wrong-doer of any harm other than death.

According to Section-105 of IPC

Commencement and continuance of the right of private defence of property:

1. The right of private defence of property commences when a reasonable apprehension of danger to the property commences. 

2. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. 

3. 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 or as long as the fear of instant death or of instant hurt or of instant personal restraint continues. 

4. 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. 

5. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues. 

According to Section-106 of IPC

Right of private defence against deadly assault when there is a 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 is so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. 

Illustration

A is attacked by a mob who attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without the risk of harming young children who are mingled with the mob. A commits no offence if by firing he harms any of the children.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach her at Instagram @sakshiydv1108