Right to Private Defense
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Right to Private Defense
Section 96 of Indian Penal Code, 1860 reads as follows: “Things done in private defence – Nothing is an offence which is done in the exercise of the right of private defence.” This section means the act done in order to prevent yourself from harm will not be an offence. Right to private defence is applicable only when the act done is equivalent to the injury you would have got if you didn’t exercise your right to private defence. Ques: Is it an absolute right? Is the right of private defence available in a free fight? Does an aggressor have the right to private defence?
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Indian Penal Code Section 96 defines private defence. It also clearly states that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts.
This of course, is a justifiable answer. One who enters in a free fight is entirely aware of his actions, he is entirely known to the fact that he could seriously get hurt, he also knows that there could be so many consequences following his actions including physical damage, mental damage and legal consequences. Despite this, if someone chooses to enter into a free fight, then both the parties are not subject to any legal remedies whatsoever.
Therefore, though it is said that “Nothing is an offence, which is done in the exercise of the right of private defence”, this does not apply to free fights. If this was the case, it may sometimes happen that a person enters into a free fight, and is careless because he relies on the remedy of private defence justifying his actions. To avoid this, the remedy is not provided. Although a certain person doesn’t enter into a free fight wilfully, but nonetheless, he intentionally and knowingly makes the decision for himself of entering into it, which makes it a wrong.
But again, as we see in law many a times, the decision of the Court depends on the background and the fact that “necessity knows no law”. Therefore, the final decision whether it is a private defence or not rests with the Court. A famous example to explain this scenario would be of the case- Kamparsare vs Putappa. In this case, a boy was raising a cloud of dust on the streets. This passer-by chased the boy down the street and gave him a beating. The Court gave held that this was a case of private defence.Right to private defence is actually the right which is inherent in man. It is for the protection of people from wrong doer who attack on them with need or needlessly. It is the guardian for the innocent to escape from liability for protecting himself in courts of law. This right to private defence can used against a wrongdoer only when the respected person is in imminent danger and there is no alternative for him to face but only to fight back. Section 96 to 106 of Criminal law talks about Right to private defence of a person and property. Right to private defence is very much essential in Criminal law for the protection of people but the extent of that reasonable force is always protected under law. Right to private defence gave an opportunity to the citizens to take law in hand and protect themselves. It should not be extensive then the harm caused. It should be proportionate to the harm caused. The word reasonable tells us the motive in the person who is exercising right to private defence. For example if A is going alone in a road and there is B who is a thief threatens and beats him by taking his wallet and returns it back once A shows his gun. So, after returning B turns back and starts running away from him. Here in this case there is no danger to A but still he makes use of his gun to shoot B. This is not Right to private defence. Here his motive is not to protect him but to kill someone who is not with him. And this Right to private defence is also available against the person who is intoxicated or unsound mind it is almost the same principle where it should be reasonable force against the person. This Right to private defence is not available to the person when there is an option for him to approach police. For example in above mentioned example there is a Police station right before A and but he still uses his gun to protect himself then there can be no defence available.
– ‘Nothing is an offense’ in section 96 means that it is essentially a defensive right meaning it is only justified based on the circumstance. There is always a limit to the force we can use as a defense. As mentioned in section 99, there should be reasonable apprehension of death, or of grievous hurt, if done or attempted to be done to use force as a defense. The extent of which the right may be exercised should not extent to inflicting more harm than what is necessary to inflict for the purpose of defense. Thereby proving that it is a defensive right and not a power to retaliate and show aggression in return.
1.Does an aggressor possess the right of private defence?
The aggressor does not possess the right of private defence.
Section 96 to 106 of the Indian penal code states the law relating to the right of private defence.
The use of force to protect life and property is right of private defence. In criminal law, self help
is the first rule. But there are certain restrictions to invoke right of private defence.
In such a case, aggressor does not possess the right because right of private defence is available
only when
● There is threat to life and property
● There is no prior idea regarding the act and the act of private defence will take place at
the spur of the moment.
● There is no way to escape from encounter
● The person has no time to inform the authority
● There is a necessity to live.
In case of aggressor, there is no reasonable apprehension of danger and aggressor is the person
who initiates the trouble. The right of private defence is to protect the person during the threat to
life but aggressor is the person who creates such a threat and thus he does not possess the right of
private defence.
In other words, private defence is available against the aggressor and there is no private defence
against private defence. ie., When an act is done in exercise of private defence such act cannot
give rise to other private defence in favor of aggressor in return.As per Sec 99 of IPC 1860, 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.
Whereas As per Sec 94 of IPC 1860, Act to which a person is compelled by threats.—Except murder, and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person will otherwise be the consequence: Provided the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.
Section 94 stands as a General Exception because a person is provoked by threats and in such a case a person is led by his actions due to the threats and its resulting consequences, A person takes an action as a resultant to threat.
Whereas in Sec 99, act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done should not lead to any actions of a person as there are no causes of one bringing his private defense in action.
Therefore, Section 99 of IPC,1860 provides only an extent upto which the right of private defence can be used and Section 94 is provided as a general exception.The Right to Private or Self-Defence is provided in Chapter IV of IPC under General Exceptions (Section 96 to 106). None of these Sections describes assailant as victim or gives the right to self defence or private defence due to the fact that the aggressor is always the one who initiates attack against the sufferer. As provided in Law of Torts that every person has the right to defend his own self, property, or possession against any “unlawful harm”. The person acting in defence is entitled to use reasonable force against the aggressor as it is considered to be a “natural force of defence” or bona fide in nature. This kind of force is not credited as “natural force” when the attacker uses it as a defence on the victim itself. There is always an accepted ideology of imminent danger on the victim and never on the initiator of the offence.
Right of private defense is not available in the case of free fight as each individual is responsible for his own action. As right of private defense is available only in the circumstances when there is reasonable apprehension of imminent danger, but in case of free fight the individuals get deliberately involved and with malicious intention mostly. Thus, allowing the right of private defense in free fight will give individual and excuse to conceal their malicious act and it won’t be fair to another person involved in the fight. This can be used as an escape every time one gets involved in a fight and under this cover they can materialize the intent of causing harm to that another person.
In an order to find as to right of private defence is available in a particular situation or not, the entire incident must be examined with due care. The injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstance whether the accused had time to have recourse to public authorities are all relevant factors to be considered on a plea of private defence. This right is a defence right, and is neither a right of aggression nor of reprisal. There must be imminent danger and if the same is not there, then there is no right of private defence.
The right is only available to one who is suddenly confronted with the necessity of averting and impending danger not of self creation. The necessity must be a present necessity whether real or apparent. It remains a issue as to whether this right of private defence has been legitimately exercised.
Hence, running to house, fetching a gun and assaulting the deceased are by no means a matter of the purview of private defence.
Along with the above mentioned factors to be kept in mind while exercising the right of private defence, one must also remember the limitations on the right of private defence of an individual or property –
(a) If there is enough time for recourse to public authorities, then this right is not available;
(b) More harm when compared to what is necessary should not be caused;
(c) There must be reasonable apprehension of death or grievous hurt or even hurt to the individual or property.
It is also pertinent to note that this right is a defensive right and did not include the right to launch an offensive attack, especially with the need of defence no longer existed.It is human instinct to repel force by force, and this instinct is recognised by law as a natural right. Right to private defence is a valid justification under the law of torts. Every person has the right to defend his own self, property, or possession against unlawful harm. The person acting in defence is entitled to use as much force as he reasonably feels necessary.
The force applied must not be out of proportion and should only be used to defend oneself. In cases of private defence, it is of utmost importance that there was real and imminent danger for him to have acted in that particular manner, under those circumstances. Proportionate and reasonable force, in the light of self defence can be explained through the case of Morris v. Nugent, where the defendant was passing by the plaintiffs house, and the plaintiffs dog ran out, biting the defendants ankle cloth. He then removed his gun, and shot the dog while it was running away. It was held that there was no imminent danger for the defendant to act in such an unjustified and unreasonable manner.
The means adopted to protect ones own property, must be proportionate and reasonable to the injury likely to be inflicted. For instance: a broken glass or spikes to keep out dogs, or thieves would be a reasonable and justified act to protect ones own property.Every person is entitled to defend his property, but this does not give him/her the right to cause injury to his neighbour. For instance, a landowner on whose land water has accumulated, is not permitted to let the water off to his neighbours land without compensating him for the damage caused. One cannot adopt measures which would divert the mischief from his own land to another’s land, which would otherwise be protected.
When causing even death does not amounts to an offence
The provisions about right of private defence is enshrined under The Indian Penal Code among sections 96 to 106. These rights hold due importance as they do not constitute an offence though commission of them might cause death. The right of private defence can be exercised to protect the body as well as the property. Here body implied own body, the body of any other person. The word property denotes movable or immovable property belong to himself or any other person.
Section 98 discusses about the right of private defence against an unsound mind person. Unsound mind here means that an act by reason of youth, want of maturity of understanding, intoxication of person. The right is available against the persons who are mentally incapacitated.
Section 99 specifies the acts against which the right of private defence is not available. Such as those acts which are done by public servant and causes no apprehension of grievous hurt or death. OR, acts which are done by the direction of public servant and when there is a time to have recourse to the protection of the public authorities.
Sections 100, 101 and 102 is concerned with exercising of right to protect body. The sections says that such right can even extend to cause death and will not amount to an offence if the acts committed are among these:
1. Assualt
2. Rape
3. Grievous hurt
4. Gratifying Unnatural Lust
5. Kidnapping or abducting
6. confinement
7. Acid attack
Where the act does not amount to any of these stated above then the right extends to causing harm other than death. The right commences as soon as reasonable apprehension of danger arises and continues till the danger continues.Indian Penal Code is a statutory law which defines crime as well as provides punishment for the same. Chapter VI of the statute comprises of General Exceptions to crime rather it serves as a defense for the wrong doer. One such defense is the right of private defense constituting the sections of 96-106. Right of private Defense is not only restricted to the the commission or omission of an act contrary to the law for protecting the body of oneself or the other but it extends also to the private defense of property.
sec.100- Under circumstances mentioned where private defense of body can extend to voluntary causing death – death, grievous hurt, rape, unnatural lust, kidnapping or abduction, wrongful confinement, acid attack(added by 2013 amendment act) Not only commission but reasonable apprehension may also justify voluntary causing death.
sec.103- Is similar to sec. 100 the only point of differentiation lies in the subject. Here the defense is subject to protection of property of oneself or the other. Death can be caused voluntarily in cases of- robbery, mischief by fire, theft, mischief, house trespass which causes reasonable apprehension of death or grievous hurt.
sec.101 and 103 talk about the other situations apart from those mentioned in sec.100 and 103 where death is not justified but any other action proportionate to the harm and subjected to the restrictions of sec.99 can be implemented
sec.102 and 105 speak about the commencement and continuance of the right of private defense which starts as soon as there is reasonable apprehension of danger or attempt or threat and continues as long as there is reasonable apprehension or until no help has arrived.
sec.106 allows the right of Private defense to extend to causing harm to the innocent in case it is required.IPC Section 96 to 106 of the penal code states the law relating to the right of private defence of person and property. According to Article 96 of the Indian Penal Code, nothing is an offence which is done in the exercise of the right of private defence. In a civilized society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence.
IPC Section 97.Right of private defence of the body and of Property:-
IPC Section 98. Right of private defence against the act of a person of unsound mind, etc
IPC Section 99. Act against which there is no right of private defence
IPC Section100. When the right of private defence of the body extends to causing death
IPC Section102. Commencement and continuance of the right of private defence of the body
IPC Section103. When the right of private defense of property extends to causing death:
Section104 IPC. When such right extends to causing any harm other than death
Section105. Commencement and continuance of the right of private defense of property:In a free fight, no right of private defence is available to either party and everyone is responsible for their own acts.
The right of private defence, as the name suggests, is an act of defence and not of an offence. Consequently, it cannot be allowed to be used as a shield to justify an aggression. This requires a very careful weighing of the facts and circumstances of each case to decide as to whether the accused had in fact acted under this right. Assumptions without any reasonable basis on the part of the accused about the possibility of an attack do not entitle him to exercise this right.
For example, A is trying to stab B with a knife suddenly B picked a rod lying nearby him and threw it at A making him bleed, he can exercise his right to private defence.In a free fight, right to private defence is not available to any of the parties and everyone is responsible for their own acts. It is like Volenti non fit injuria and the person involved in free fight is acknowledge about the consequences of his acts. The right of privete defence is available in those situation when the person is in the danger of getting harm and not in giving harm to the others. It is used in the retaliation of the attacks not as the exemption from those acts under the guise of the right of private defence. Thus, it can be used as a shield to justify the aggression. Generally, in a free fight people tries to defeat the person in whatever way they can do it. They don’t care about the life of the others or what injury or damage can be caused to the other. The only thing that is in their mind is how to defeat the others and not about the consequences of the acts done in pursuance to acheive the goal.
The right to private defence is a question of fact which needs to be determined on the facts and circumstances of each case. This right commences as reasonable apprehension on the body arises from an attempt or threat to commit such offence. Moreover, in free fight there is always an apprehension of the threat but both the parties are aware of this apprehension and this is not the reasonable apprehension for taking the plea of right to private defence. It is a defensive and not a punitive or retributive right so the parties are not allowed to take this defence.In a free fight, right to private defence is not available to any of the parties and everyone is responsible for their own acts. It is like Volenti non fit injuria and the person involved in free fight is acknowledge about the consequences of his acts. The right of privete defence is available in those situation when the person is in the danger of getting harm and not in giving harm to the others. It is used in the retaliation of the attacks not as the exemption from those acts under the guise of the right of private defence. Thus, it can’t be used as a shield to justify the aggression. Generally, in a free fight people tries to defeat the person in whatever way they can do it. They don’t care about the life of the others or what injury or damage can be caused to the other. The only thing that is in their mind is how to defeat the others and not about the consequences of the acts done in pursuance to acheive the goal.
The right to private defence is a question of fact which needs to be determined on the facts and circumstances of each case. This right commences as reasonable apprehension on the body arises from an attempt or threat to commit such offence. Moreover, in free fight there is always an apprehension of the threat but both the parties are aware of this apprehension and this is not the reasonable apprehension for taking the plea of right to private defence. It is a defensive and not a punitive or retributive right so the parties are not allowed to take this defence.In IPC, there are some rights of private defences given to the person or property to defend himself
or of any other person against an act of another, which if the private defence is not pleaded would
have amounted to a crime.
Though there are some exceptions when right of private defence cannot be exercised.
Section 99 lays down the conditions and limits within which the right of private defence can be
exercised. –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 color of his office, though that act, may not be strictly justifiable by law.
The first two clauses of the section provide that there is no right of private defence against the
public servant or person acting in good faith in the exercise of his legal duty provided that the act is
not illegal.
The third clause restricts the right if private defence when there is sufficient time for recourse to the
public authorities.
And the right must be not be exceeded the harm caused.
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