Private defence is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury.The expression ‘private defence’ that has been used in the Indian Penal Code, 1860, has not been defined therein. Thus, it has been the prerogative of the judiciary to evolve a workable framework for the exercise of the right. Thus in India, the right of private defence is the right to defend the person or property of 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. This right therefore creates an exception to criminal liability.
The Right to private defence of a citizen, where one can practically take law in his own hands to defend his own person and property or that of others, is clearly defined in Section 96 to Section 106 of the Indian Penal Code.
Section 96 talks about things done in private defence – Nothing is an offence, which is done in the exercise of the right of private defence.
Sec 97 of IPC states that every citizen is having this right subject to certain restrictions (mentioned in sec 99) to defend his own body or body of any other person, against; any offence affecting to the human body; the property whether immovable or movable, of himself or of any other person, against any act, which is an offence falling under the definition of robbery, theft, mischief, criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass.
This implies that Self help is the first principle i.e. it is the duty of a person to help himself and then arises a social duty to help other members of the society. The social duty arises out of the Human sympathy to protect others and their property.
Right of private defence against the act of a person of unsound mind, etc. (Section 98) :
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.
Right of private defence is available against -
(i) Minor
(ii) Person of unsound Mind
(iii) Intoxicated Person
(iv) Person having no maturity of understanding
(v) Person acting under misconception.
Section 99 lays down the conditions and limits within which the right of private defence can be exercised. The first two clauses provide that the right of private defence cannot be invoked against a public servant or a person acting in good faith in the exercise of his legal duty provided that the act is not illegal. Similarly, clause three restricts the right of private defence if there is time to seek help of public authorities. And the right must be exercised in proportion to harm to be inflicted. In other words, there is no right of private defence:
Against the acts of a public servant; and
Against the acts of those acting under their authority or direction;
When there is sufficient time for recourse to public authorities; and
The quantum of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defence.
Section 100 specifies 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, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
First: 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 circumstances that 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 acid or attempting to throw acid.
Sec 101 says,When such right extends to causing any harm other than death:
If the offence be 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.
Sec 102 said about the Commencement and continuance of the right of private defence of the body,according to sec 102 of ipc,
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.
When the right of private defence of property extends to causing death (Section 103) :
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:
First: Robbery ;
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.
When such right to causing any harm other than death (Section 104) :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.
Commencement and continuance of the right of private defence of property (Section 105)
The right of private defence of property commences when a reasonable apprehension of danger to the property commences.
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.
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.
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.
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.
Right of private defence against deadly assault when there is risk of harm to innocent person (Section 106) :
If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be 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.
