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Right of Private Defence under Indian Penal Code




The general rule is that no person has authority to take the life of another person but there are always an exception which provide a shield to the person whoever kills another person and this exception comes under the roof of Right of private defence. Indian Penal Code, 1860 provide an exception that whoever causes the death of the person under a private defence, as the name suggests is a defence not an offence, right of private defence is also available against the property. Though it is the duty of the state to protect every individual but the state cannot take care of each and every person because it is not possible in this vast country. So, in order to carve out the difference between the act of innocence and the actual culprit, the IPC comes out with certain exceptions and right of private defence. Section 96 to 106 dealt with the right of Private Defence. Section 96 of the Code specifically dealt that things done in private defence is not considered as an offence.



Right of Private Defence of the Body and of the Property (Section 97)

A person’s life and his personal property is very precious for anyone, no one can allow to take their life and property easily. So, a person has a right of private defence in case of danger of life to his body or any other person, against any offence affecting the human body and of his property or property of any other person which falls under the category of theft, robbery, criminal trespass, mischief (defined in the chapter XVII that is offences against the property under this Code).

Example of right of private defence to defend the body of a person is suppose A, grazing his cattles in forest, B suddenly came and start attacking on A, with a knife in aggression of revenge. Here, A has right of private defence to protect himself from the attack of B. The another example of right of private defence to defend his property is suppose A, has some valuable goods with him and B tried to robbed that good. Here, A has right of private defence of property to protect his property or that property belong to any other person.


Not Exhaustive Right- Exception to Right of Private Defence (Section 99)

The right provided to the person is not exhaustive right because this attached certain exceptions. Though the person is free to protect himself or his property but the force used should be proportional to the force used by the other party for example, A attacked B with a stick and B attacked A with knife for defending himself, the force should be proportional to the force used. Here are the exceptions to the right of private defence given below-

No right of private defence against public authority acting in good faith


The right of private defence is available to every person against any person, if a person has reasonably apprehension of causing death or of grievous hurt from the other person but the person has no right to use right of private defence against the public servant who is acting in a good faith under colour of his office. For example, A, a police constable having gun in his hand come to B to arrest him under the authority to arrest him, B believing that A may shot him, B shot the police man. This act of B is not come under right of private defence.

Though a person cannot use right of private defence against the public authorities but this exception is also not exhaustive it also has an exception, a person can not deprived of right of private defence against an act by a public servant unless he knows or reason to believe that the person doing the act is such public servant. If the person doesn’t know that the person came to him is a public servant and he is using the force to save himself then the person cannot be deprived of right of private defence.



No right of private defence against a person acting by the direction of public servant


The right of private defence cannot be used by a person against the person who is acting by the direction of public servant. But if the person does not know and has reason to believe that the person is not public servant then the person has right to take self defence.


Time to recourse to authorities

The third exception to the right of private defence is that the person cannot take advantage of right of private defence if he has sufficient time to reach to the public authorities.


No access harm then necessary

It is one of the condition also while using the right of private defence that the force used should be proportional to the force which is inflicted, it should not be in access as we have seen the example if A beats B with lathi then B cannot shot A in his self defence. Hence, in order to use the right of private defence one should kept in mind that the force used should not be in access then necessary.


Private Defence Against the Act of Person of Unsound Mind Etc. (Section 98)

Generally, the act done by a person of unsound mind, by the reason of youth, the want of maturity of understanding, intoxicated person, by reason of any misconception on the part of that person can take the benefit of general exceptions (explained in chapter IV of the Code). But section 98 says that the act done by any of the above person under the influence of intoxication, unsoundness of mind etc., every person has same right of private defence against that act which he would have done if the act were that offence. That means a person has a right of private defence against that person also who is intoxicated, unsound mind etc. only if that person tried to harm the other person.

For example, A under the influence of intoxication, attempts to kill B, A is guilty of no offence. But B has the same right of private defence which he would have if A were not toxicated.


Extension of Right of Private Defence Of Body Causing Death (Section 100)

Section 100 of IPC gives the right of private defence to extend the right to cause death to other person but subjected to restrictions imposed under section 99, in the cases hereinafter enumerated below:-


Such an assault which may reasonably cause the death of the person

The right of private defence can be extended to death in case where the person assaulted in such a manner that death is the only and otherwise be the consequence of such assault there is no way to escape.


Such an assault which may cause grievous hurt to the person

The right of private defence can also be extended to cause death in cases where the person assaulted in such a manner that grievous hurt (defined under section 320 of the Code) is the only and otherwise be the consequence of such assault.


Assault with the intention of committing rape

The right of private defence can be extend to cause death in case of a person assaulted with the intention of committing a rape (defined under section 375 of IPC). Since, rape is considered as heinous crime against the women so the women has given this right of extension to cause the death of the person in defence of herself.


Assault with the intention of gratifying unnatural lust

Since, lust is considered as immoral in our society so if anyone assaulted someone for gratifying unnatural lust then the deceased person in order to save himself/herself a person can extend the force to cause the death of other person.


Assault with the intention of kidnapping and abduction

No person has a right to curtail the right of any other person, if any person did so by kidnapping or abducting (defined under section 359 and 362 respectively of the Code) any person with the intention for any consideration or any advantage, then the person whose right has been curtailed have a right to use the right of self defence to the extent of causing death.


Assault with the intention of wrongfully confining a person, unable the person to recourse to public authorities

The right of private defence can be extended to cause death in case if a person assaulted any other person with the intention of wrongfully confining a person and doesn’t allow him to have recourse to the public authorities for his release in such a cases the person can extend his right of private defence to defend himself.

Act of throwing or administering acid

This clause were added by the amendment Act 13 of 2013, throwing or administering acid or attempting to throw or administer acid may cause reasonably apprehension that grievous hurt will otherwise be the consequence of such act and using self defence against this heinous crime to the extent of causing death to the other person.



Extention of Right of Private Defence of Property Causing Death (Section 103)

The right of private defence can be extend to cause death and any other harm to the wrongdoer if the offence has been commit or attempt to commit on the occasions, subject to exception mentioned under section 99, hereinafter enumerated below-

  1. Robbery (defined under section 390 of the code);

  2. House breaking by night;

  3. Mischief by fire committed on any building, tent or vessel which building, tent or vessel is used a human dwelling or as a place for the custody of property;

  4. Theft, mischief, or house trespass, under such circumstances which reasonably cause apprehension that death or grievous hurt will otherwise be the consequence of such offence if right of private defence cannot be exercised.


Right of Private Defence Extending to Cause Death is not Amount to Murder

If any person exceeds the right of private defence of body or of property, extent the power given by law and causes death of the person without any premeditation and without any intention of doing any harm than is necessary for the purpose of such defence will be considered as culpable homicide not amount to murder.


Punishment for Culpable Homicide Not Amounting to Murder A person who has been convicted for culpable homicide not amounting to murder in case if the act by which the death is caused with the intention of causing death, shall be punished with imprisonment for life, or imprisonment for a term which may extend to ten years, and shall also be liable to fine. In case if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death shall be punished with imprisonment for a term which may extend to ten years or with fine or with both.



Conclusion

Right of private defence is given to every person to defend his body or of his property or to any other person body or property. But the right of private defence is not absolute right it has certain exceptions and if any act falls under these exceptions then the defence of right of private defence shall not be entertained and the person will not allow to take the advantage of taking the defence under the right of private defence. Hence, this right must be exercised carefully by taken into consideration of all the elements of exercising the right of private defence, this right must not be allowed just to defend oneself when he/she is the actual culprit.

Reference:

The Indian Penal Code, 1860


Author Details: Asma Praveen is a student at Glocal Law School, Glocal University, Saharanpur, Uttar Pradesh.


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