PRIVATE DEFENSE AGAINST PROPERTY

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This article is written by Antara Roy of 4^th Semester of LL.M (Criminal Law and Criminology) of Kazi Nazrul University, Asansol, West Bengal, an intern under Legal Vidhiya

Abstract-

Before evaluating human civilization, the maxim might make right should be applied to all aspects of society. But ultimately, as society changed, the proverb might be correct was disregarded. The institution of the state, whose responsibility it is to protect each person’s life, liberty, and property, was also founded as a result of social progress. But at some point, it must be recognized how strong and resourceful the state is because it is impossible for each police officer to oversee and monitor every individual’s activity in society and to always ensure security for them everywhere. Private defense against property refers to the essential idea in legal and ethical frameworks that enables people to defend their property through non-governmental measures against theft, destruction, or unlawful use. This idea, which forms the cornerstone of a just and orderly society, is firmly ingrained in the ideology of individual rights and property ownership. Therefore, the laws relating to the right to private defense under the Indian penal code are the subject of this Article.

Key Words- Property, Private- Defence, Indian Penal Code, Injuries, Legal framework

Introduction-

The rate of crime is quite high in the modern, rapidly developing, and globalizing globe. The most important things in this world are everyone’s personal safety, the security of their lives, and their property. Additionally, it is the duty of every state to safeguard people’s lives and their property. Therefore, penal laws are viewed as an effective weapon in today’s environment for the maintenance of law order, and peace. Penal laws are present in most states to maintain law and order. The Indian Penal Code, of 1860, exists in India in a similar manner. But realistically speaking, the protection can only be offered by a state. A person may occasionally be required to take drastic measures to safeguard his or her life or property in order to defend himself from the threat. Because of this, most contemporary civilized cultures, including India, grant the right to private defense. We have the right to self-defense with some restrictions under CHAPTER IV (i.e., General Exceptions) of the Indian Penal Code, 1860. Sections 96 to 106 of the Indian Penal Code[1], which codifies the 1860 law of private defense of person and property, are founded on the principle of self-preservation. The concept of private defense under the IPC is explained in this article. The concept of private defense can therefore be thoroughly understood by reading this text. This article’s major goal is to clearly explain the right to self-defense and its restrictions in a way that anyone can comprehend.

What is the Right to a Defense?

The first duty of a man is to assist himself. Every free country’s citizen must be encouraged to exercise their right to self-defense. Every legal system recognizes this right, whose scope varies in inverse proportion to the state’s ability to safeguard the citizens’ lives and property. Although protecting citizens’ lives and property is the state’s top priority, no state, no matter how affluent, can afford to send out a cop to find every criminal in the nation. The use of this privilege does not constitute an infraction and is not accompanied by any right to private defense.

Other Legal Systems’ treatment of the Right to a Private Defense-

The American Law- The right to private defense is very similar in the American and Indian legal systems. Two crucial components of the American judicial system. The right starts when and not before a reasonable suspicion of bodily harm results from an effort or threat of committing a crime, according to the principle of reasonableness. Only a genuine, immediate, and imminent threat qualifies for the use of this privilege. Only the amount of force required to prevent the threatened injury or harm should be employed, in other words, force should be proportionate to the harm.[2]
The English Law- The Criminal Law Act of 1967 establishes the private defense privilege under English law. A person may use as much force as is appropriate in the circumstances to prevent crime or to effect or assist in the lawful arrest of offenders, suspected offenders, or anyone who is unlawfully at large, according to Section 3(1) of this Act. Sec. 3(2) – When force is used for a purpose specified in the subsection and that purpose justifies the use of force, the provisions of paragraph (1) above supersede the common law’s rules on the matter. This right aids in a defendant’s total discharge or acquittal under the English judicial system because the defendant did not employ unlawful force. However, the court’s decision will determine whether he should be exonerated. The court examined whether his defense was reasonable.

According to the ruling In Beckford v. the Queen, when defending himself, those for whom he is accountable, and his property, a defendant is allowed to use reasonable force. It must make sense.

Private Defence in India- An English legal luminary named Jeremy Bentham once stated, that this right of defense is very vital. Because no one’s personal vigilance can ever compensate for the vigilance of the Magistrates. The fear of total individual resistance can deter wicked guys more powerfully than the fear of the law. When you violate this privilege, you help all the bad guys get away with it.

This right is supported by two ideas-

It only works against the aggressor,
The right is only available if the defender harbors a plausible suspicion

The Right to Private Defense serves a social function, and its use should be given wide latitude. Such a right serves to foster a manly spirit in a law-abiding person as well as to curb the influence of corrupt characteristics. Sections 96 through 106 of the IPC (Indian Penal Code) explicitly establish a citizen’s right to private defense, or the ability to essentially take the law into one’s own hands to protect one’s own property and defend oneself.[3]

The meaning of Private Defense in Law-

This right is an affirmative defense that is employed when there is an immediate threat to someone’s life or property. A person is granted freedom under it, but the state has the authority to punish offenders severely if they exploit their freedom to commit crimes or their right to a private defense to justify any illegal activity.

According to L.B. Curzon, when a person commits a tort in order to defend himself or his property, he is not held accountable if the act is reasonable given the circumstances.

Indian Penal Code, 1860, Section 96– specifies that if a prohibited conduct is committed in order to defend one’s person or property, it will not be considered an offense. That act’s use of force must be reasonable and proportionate. The right to a private defense will no longer be available if the act is carried out notwithstanding the availability of other corrective actions to prevent it and the repercussions it may cause[4].

Illustration- A, who had previously been accused of murder and who came across as belligerent and obstinate, got into a fight with B. A used a knife to assault B after a heated disagreement. B is entitled to self-defense so that he can defend himself from the violent act.

The limitations of self-defense-

A person might not always be able to exercise their right to a private defense. The restrictions are as follows, as specified in IPC section 99,

If someone acts with good intent there is no reason to believe that there is any threat or danger.
Use only proportionate force.
When the individual has enough time to take protective measures from the public official.
If a public official acts in good faith, that is, with the welfare of the general public in mind, and if the action is of a nature that allows for timely remediation and the protection of the public authorities.

Explanation 1- If a public official acts in good faith, that is, with the welfare of the general public in mind, and if the action is of a nature that allows for timely remediation and the protection of the public authorities.

Explanation 2- A person’s right is not violated unless they are aware that a public official is ordering them to do something or they are informed of the authority that they are acting on.

In Emperor vs. Mammum,[5] on being accused of murder in the present instance, the defendant invoked his or her right to a private defense. It was decided that instead of taking matters into their own hands and brutally attacking and killing the trespasser who was cutting rice on their field, they had time to seek the protection of public authorities.

Various Forms of Private Defense-

Private defense of the body
Private defense to Property (Immovable and movable)

When there appears to be a reasonable suspicion of threat and danger, a person may exercise his right to private defense, subject to restrictions under section 99.[6] A person has a moral obligation to protect both his own body and property as well as that of others.

Regarding property the right of private property defense extends to causing death in the following situations, subject to the limitations under limits section 99: Regarding property- Robbery, House trespass, House-breaking by night, mischief by fire.

Illustration- When Z was asleep, A and B robbed him in his home. Z woke up in the middle of their journey and attempted to stop them; when this happened, A pulled out his gun and shot Z. A was fatally injured by a strong punch to the head that Z delivered in self-defense. Z is entitled to self-defense.

Factors for the Private Property Defense Right-

The trespasser must have actual physical possession of the property for a sufficient length of time;
The owner must be aware of the ownership, either through communication or without hiding any true information.
The trespasser must complete and complete the process of ejecting the legitimate owner;
Anyone, not even the true owner, could destroy those yields if there should ever be an occurrence of cultivable land and the holder has produced any crop on the land.

Private defense includes doing other unlawful acts-

A crime cannot result in a person’s voluntary death if it is not included in the list of offenses listed in section 103 of the IPC. Section 99[7] has limitations that apply to it.

Illustration-

B will be charged with murder and will not have the option of a private defense after A stole his phone, followed B, and savagely attacked him in order to get his phone back, killing him.

Section 103: The crime of using private defense that results in death to defend property[8]–

The consequences of this act include killing a person when the wrongdoer commits one of the following offenses:

When a home is broken into late at night;
A burglary attempt or crime being committed on the home or property
The act of maliciously igniting a structure used for habitation or as a tent or other structure.
Committing theft and other types of mischief that put the person in danger of a painful death or, to some extent, death.

The following case analysis of the events that occurred in the state of Kerala will help to better illustrate the key points of this section.

The accused person, who operates a flour mill in the state of Kerala, did not close his business on the day of the “Bharat Bandh” nationwide strike. The activists forced their way inside the mill and demanded its shutdown while carrying weapons that were sharp. They made threats to hurt the individual and tried to do so; in response, the accused fired shots, killing two people and injuring a number of innocent bystanders in the process. The flour mill, which was his property, was destroyed by fire. The trial court’s conviction was overturned because the court believed that the accused’s act of firing the bullet was appropriate and well within acceptable bounds.[9]

Sections 102 and 105: When there is a plausible fear that someone or something will be in danger, the right to private defense is maintained[10]–

When there is a legitimate risk of danger or harm, the privilege granted by these rules remains in effect. The right will also remain in effect if the nature of the impending threat remains the same.

The following details the numerous apprehension techniques:

when there is a plausible and reasonable fear that someone’s health or property may be in danger. The right starts when the true threat to life, limb, and property becomes anticipatory rather than an immediate threat.
When a threat is seen under sections 102 and 105 of the law, and the crime in question begins and begins to devour, it is very much permissible by the law to use force in “self-preservation,” which is just defense from illegal aggression.
When a threat is seen under sections 102 and 105 of the law, and the crime in question begins and begins to devour, it is very much permissible by the law to use force in “self-preservation,” which is just defense from illegal aggression.
No right of private defense is provided where the apprehension is dead and moribund in nature.[11]

Section 106: Application for a Private Defense Where an Innocent Person is at Risk[12]–

The section just briefly discusses the situations in which the harm of an innocent person is possible since it is not directly attributable to him because of his presence. Since this section of the law covers both persons and property, it follows logically that exercising one’s right to private defense in situations were doing so could harm a third party who does not have that same right would not constitute a crime under the provisions of this section.

Illustration- Consider a scenario in which a victim of a mob attack shoots a bullet to protect himself from suffering serious harm in a situation where innocent bystanders are present, notwithstanding their presence. In this case, one is justified in acting because it is proper to defend a person or piece of property.

Using private defense improperly-

The legal protection against any type of external threat to one’s body or property is known as the right to private defense. These days, numerous ways are found for misusing such a right. This right is frequently utilized to provide illegitimate defenses for the crime that was committed. This privilege is occasionally exercised maliciously to exact retribution or vengeance. Such abuse puts pressure on courts to provide decisions that are fully reasonable and logical. Critical scrutiny must be used in every facet of the case for justice to be served.[13]

Conditions for the Private Property Defense Right[14]–

The trespasser must have actual physical possession of the property for a sufficient length of time.
The proprietor’s knowledge of the ownership must be present, whether conveyed or kept a secret.
The trespasser must complete and complete the process of ejecting the legitimate owner
Anyone, not even the true owner, can destroy those yields if there should ever be an occurrence of cultivable land and the holder has produced any crop on the land.

Right of Private Defence of the Property-

(Possession of the Property)- The owner has no right of private defense against the property if the trespasser is in possession of it and they are aware of it. The owner of the property does, however, have the right to private defense if the trespasser does not possess the property. Thus, having the right to private property defense depends significantly on having property.[15]

(Private Self-Defense of Trespasser Right)- Till the time the trespasser is on the land, the right to self-defense against one is available. The owner has the right to inflict such wounds on the trespasser in order to remove him from the property if the trespasser tries to seize or remove him from the property. The owner’s right to a private defense ends the moment the trespasser is taken into custody, making it illegal for him to use force against the intruder. There are some circumstances where a private defense against the owner is possible. The holder of the property can engage in private defense if the owner tries to remove him from the premises while the person is the legal owner.

Private property defense includes causing death- Apart from the following circumstances, no one may exercise their right to private defense against the use of their property to bring about the death of another person:

Robbery in Indian Penal Code- According to Section 390 of the IPC[16], there are two ways to report robbery. In the long term, robbery or coercion are the driving forces behind burglary. When a person is being robbed at the time of the submission, it is a burglary.

Causes wrongful incarceration, unjust restrictions, and death, attempts to harm others, or restrict them unfairly, creates fear of harm, death, or unfair restriction; attempts to instill fear of injury, death, or unlawful detention. When a person is put in fear of time passing, being wounded, or being subjected to unreasonable restrictions during the time of the heist, that is blackmail or extortion.

House-Breaking at Night in Indian Penal Code-

In accordance with Section 446 of the IPC[17], if a trespasser enters a residence at night, the owner is entitled to private resistance up to the point of putting the trespasser to death.

Mischief by fire- Under IPC Section 436[18], it is clarified. Any action taken to unfairly harm someone else’s property falls under the category of mischief. The most aggravated kind of mischief is believed to be one which involves fire. In the unlikely event that someone causes harm by lighting fire to any building, tent, or vessel used as a place of habitation for people, another person has the right to kill that person as a result of private protection.

Robbery, mischief, or house trespass with a realistic fear of serious injury or death-

In most cases, a person cannot kill a person who has committed a crime on their property, such as a burglary, robbery, mischief, or house trespass. In any situation, if the person has a legitimate fear or danger that, if he does not kill the offender, the result would be his death or unbearable suffering, then he has the right to do so.

Kanchan v. State, the accused does not reserve the right to cause death because harm was caused by the wounded person and his companions on the accused’s property. There must be a plausible threat that the activity will, in some way, result in death or extremely serious harm.

When Private Property Rights to Defense Extend to Causes Other Than Death-

If you commit or attempt to commit an offense that gives rise to the exercise of your right to private defense, such as burglary, malicious mischief, or criminal trespass, your right to do so is limited to intentionally inflicting harm on the wrongdoer other than death, subject to the restrictions listed in Section 99. This Section cannot be interpreted as granting the accused any kind of permission to exercise their right to a private defense in excess. In the unlikely event that someone violates the right to private defense and kills the trespasser, they would be held accountable under Section 304,[19] Part II. This Section serves as the culmination of Section 103, Section 100 ends with 101. In the case of V.C. Cheriyan v. State[20], a street had been illegally built through a church’s private property by three deceased people and another person. They were the subject of criminal evidence that was being heard in court. The three deceased individuals who had connections to the Church blocked down this street in order to prevent traffic. The three dead were killed by the accused when they started clearing these blockades. The Kerala High Court agreed that church members had the right to private defense, but not to the point of killing the victim who was unarmed and whose act did not violate Section 103 of the Code.

Beginning and continuation of the Right of Private Property Defense[21]–

When a reasonable suspicion of risk to the property arises, the right to private property defense kicks in. The right to private property defense against burglary lasts until the wrongdoer has fled with the goods, assistance from the government is obtained, or the stolen property has been found. The right of private property defense against theft continues if the offender attempts to cause any individual’s death, injury, or wrongful imprisonment or if the fear of immediate death, immediate injury, or immediate individual restriction continues.

If the offender continues to commit criminal trespass or insidiousness, the right of private property resistance to trespass or evil exists.
If the house-trespass that has been initiated by such house-breaking continues, private property owners have the right to defend their homes against evening break-ins.

If there is no chance for public authorities to develop a plan of action, this right may be used. When trespassing is done successfully, the real owner of the property forfeits their ability to defend it privately. No right of private defense to assure a trespasser can access the property when the contested land is not even remotely owned by him.

Right to private defense against a fatal attack that will certainly hurt an innocent person[22]–

If, while exercising his right to private defense against an assault that reasonably raises the possibility of death, the defense is taken so far that it renders him unable to effectively exercise that right without risking the harm of another honest person, his right to private defense extends to the continuation of that risk.

Illustration: A horde attacks “A” and attempts to kill him. He cannot effectively exercise his right to private defense without putting an end to the horde, and he cannot fire without running the risk of injuring small children who have been mixed in with the crowd. If “A” harms any of the children by doing so, he takes no offense.

This section removes a morally acceptable barrier to private defense. The obstacle is the person’s doubt in his or her ability to exercise their right in any situation when there is a chance that some innocent people would suffer as a result of it. According to the section, if the defense is considering an assault that reasonably raises the possibility of death and there is the potential for harm to an innocent person, there is no restriction on him exercising his right to private defense, and he is qualified to take that risk.

Right to Self-Defense Unless Dead-

In the same way that Section 101[23] stops the right to employ private defense of the body, Section 104 prohibits the use of private defense to cause property damage that does not result in death. If robbery, mischief, or criminal trespass is the offense that prompts the use of the privilege of private defense and not one of the depictions listed in Section 103, Section 104[24] provides that the privilege of private defense extends only to the intentional causing of any damage other than death. The result of Section 103 of the I.P.C[25]. is Section 104 of the I.P.C.

In Nathan v. State of Madras[26], the Supreme Court ruled that Section 104 of the I.P.C. was not violated because there was no indication that the collecting party was provided with any lethal weapons and there was no possibility of the appealing party and his party being in imminent danger of death or serious bodily harm. Their power was limited to inflicting harm other than death. By killing one of the parties while exercising their right to private property defense, the accused violated that right, and their case was covered by exception 2 to Section 300[27] of the I.P.C. They also ran the risk of being charged with culpable homicide that does not amount to murder, Killing is prohibited by I.P.C. Section 304.

When is it permissible for someone to use their private right of defense against Property that causes death?

According to Section 103, you may use your right of private defense to murder someone in specific circumstances where a property, whether it be yours or someone else’s, moveable or immovable, is in danger. In the case of Jagan Ram v. State, the court ruled that whether the accused is the owner of the property or not is irrelevant when any crime is committed on the land. If the other person has engaged in a free fight, they are unable to use this right to protect their property. When there is a justifiable fear of death or serious injury, the acts are justified. A person cannot make a claim for any property if they are not in possession of it. a private defense right in relation to such property. The genuine owner does not have the authority to remove or expel a trespasser from the property if the trespasser is currently in legal possession of it. If someone is hired to protect the property of their employer, Section 103 protects them if they kill someone defending the property from intruders. A person appointed to watch over a public property also has the same rights. The person cannot utilize his right of private defense to kill someone if there is any other harm to the property that is not listed above. However, the individual can utilize his or her right of self-defense to injure the person who is mistreating his property in any way other than by killing them. (Sec 104). Additionally, if a crime such as stealing, vandalism, or trespassing does not reasonably raise fears of death, it is not permissible to kill someone.

Conclusion-

Next to be examined in order to justify the use of this privilege are the following: the entire incident, injuries incurred from the charge, the imminent threat to his safety, injuries that the accused has caused, and circumstances allowing the accused to open specialists with a plan of action. Each resident has a respectable weapon in the form of their right to self-defense to protect themselves. This entitlement is not intended to exact revenge for the possibility and constant danger of an assault. It is difficult for the court to determine if this privilege was used in accordance with some fundamental honesty or not if individuals abuse this right.

References-
Indian Penal Code 1860, Section 96-106
https://legalreadings.com/private-defence-protection-against-body-or-property, Last Visited on 14.9.2023
https://www.researchgate.net/publication/351081696_Right_to_private_defence_A_preventive_right, Last visited on 15.9.2023
Indian Penal Code, 1860. Section 96
Indian Penal Code, 1860, Section 99
Section 99, of the Indian Penal Code, 1860
Section 103 of the Indian Penal Code, 1860
Section 102 and 105 of the Indian Penal Code, 1860
Section 106, Indian Penal Code, 1860
https://blog.ipleaders.in/private-defence-law, Last Visited on 14.9.2023
https://blog.ipleaders.in/private-defence-related-to-property-a-guide, Last Visited on 13. 9.2023
https://blog.ipleaders.in/private-defence-related-to-property-a-guide, Last Visited on 12.9.2023
Section 390, Indian Penal Code, 1860
Section 446 of Indian Penal Code 1860
Section 436 of the Indian Penal Code 1860
Section 304 of the Indian Penal Code 1860
https://blog.ipleaders.in/private-defence-related-to-property-a-guide Last Visited on 13.9.23
https://blog.ipleaders.in/private-defence-related-to-property-a-guide, Last Visited on 14.9.202319.
Section 101 of the Indian Penal Code, 1860
Section 104 of the Indian Penal Code, 1860
Section 103 of the Indian Penal Code 1860