Introduction :
Necessity knows no law is a common saying which means that an act done out of necessity cannot be subjected to the rules of the private law. The law of private defense being the natural and inalienable right of every man, the law of society cannot abrogate it.
Section 96 to 106 of the Indian penal code deals with the various provisions relating to the right of private defense. The law confers rights on every individual to defend his life, liberty, and property when he is confronted with imminent danger of unlawful aggression.
Meaning of private defense:
Right of private defense means committing an offense in exercise of one’s own right to defend or protect his life, liberty, or property.
L.B.Curzun defines private defense as ” where a person commits a tort in defense of himself or his property, he is not liable if the act has been in the circumstances of a reasonable nature.
According to Bentham, the right of private defense is necessary for the protection of one’s life, liberty, and property.
Provisions under the Indian penal code:
Section 96 to 106 of the IPC deals with the law relating to a person and the property. these provisions provide the authority to the person to use necessary force against the wrongdoer to protect one’s own body and property and also of others’ bodies and property if immediate aid from the state machinery is not available.
Section 96 of the IPC lays down the general principle of law and states that nothing is an offense that is done in the exercise of the right of private defense.
The Indian penal code has provided for the right of private defense under two heads, the first one is the defense of the body and another one is the defense of the property.
Section 97 relates to the subject matter of private defense and provides that every person has a right to defend a person and also his property, but this right has been subjected to restrictions provided under section 99.
The Apex court in Ishwar Singh v. State of Rajasthan has held that, to invoke the right of defense of person or property the accused must prove that he was placed in such a dangerous situation that it was necessary for him to use such a reasonable force to protect himself.
In R v. Rose, the accused shot and killed his father whom he believed to be cutting the throat of his mother, the court, in this case, accepted the defense of the accused of the right of private defense to protect his mother from the act of his father.
Section 98 provides for the right of private defense against the acts of the person who may not be held criminally liable on the ground of unsound mind etc
Section 99 lays down the limitations for the right of private defense and provides the circumstances where the right of private defense is not available, they are
1. There is no right of private defense against the act of the public servant or act done at the direction of the public servant.
2. There is no right of private defense if the force used and harm caused were not reasonably necessary. etc
In Munney khan v. State, the court observed that all the sections from 96-106 have to be read together to know the scope and limitations, the following limitations will apply to the defense,
1. It is not your right to exercise if there is sufficient time for recourse to public authorities.
2. There should be reasonable apprehension of hurt, grievous hurt, or death to the person or damage to the property.
3. The force used and harm caused should only be as much as reasonably necessary.
Section 100 provides, when death may be caused while exercising private defense of the body, it is applicable for the following circumstances,
- An assault with apprehension to cause death.
- An assault with an apprehension of causing grievous hurt.
- assault to commit rape
- An assault to gratifying unnatural lust
- An assault with intention of kidnapping or abducting.
- Assault with intention of wrongful confining of person..etc.
- An act of throwing acid or attempting to throw acid.
Section 101 speaks about causing any harm other than death
If the offense is not of any of the descriptions enumerated in the last preceding section, the right of private defense 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.
And the commencement or the continuance of the right of private defense of the body is given under Section 102, and accordingly, it commences as soon as the reasonable apprehension of danger to the body is started and continues till the apprehension of the danger exists.
Section 103 provides that when death may be caused while exercising private defense of the property, it is applicable in the following circumstances,
- Robbery,
- housebreaking by night,
- theft,
- mischief or house-trespass, etc.
Section 104 provides for causing any harm other than death, accordingly, this section will apply if the wrongdoers commit or attempt to commit any of the following offenses; theft, mischief, or trespass not of the description which has been provided under section 103 and is subjected to the restrictions provided under section 99, and in such a case right of private defense of the property would extend only to causing harm other than death to him.
Section 105 provides for the commencement and continuance of the right of private defense of property., Like section 102 of the IPC, this section also fixes the time when the right of private defense of property commences and when it comes to end. It commences as soon as a reasonable apprehension of danger to the property commences and it depends upon the nature of the offense.
Section 106 provides for the Right of Private defense against deadly assault when there is a risk of harm to an innocent person.
It says that in the exercise of the right of private defense against an assault which reasonably causes the apprehension of death, the defender be so situated that he can not effectually exercise that right without risk of harm to an innocent person, his right of private defense extends to the running of that risk
Conclusion:
It is the duty of the state to protect its citizens and their property from harm. However, there arise certain circumstances when the aid of state machinery is not available, during such circumstances a person is allowed to use such a force to protect himself or someone else’s person or property, this is referred to as the right of private defense, which is necessary for the protection of one’s life, liberty, and the property.
References:
- https://www.lawteacher.net/cases/self-defence.php
- https://www.academia.edu/35433579/Right_of_Private_Defense_under_Indian_penal_code
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3626681
- http://doi.one/10.1732/IJLMH.26513
- https://www.advocatekhoj.com/library/lawareas/death/death.php?Title=When%20the%20right%20of%20private%20defense%20of%20the%20body%20extends%20to%20causing%20death
- https://timesofindia.indiatimes.com/readersblog/lawpedia/right-of-private-defence-33052/
- https://bnblegal.com/article/private-defence/
- https://www.lawctopus.com/academike/right-private-defence/
Author: Naveen Talawar,
student at Karnataka state law university's law school
