PRIVATE DEFENCE AGAINST BODY AND PROPERTY

This article is written by Mahak Jain of Dharmashastra National Law University, Jabalpur, an intern under Legal Vidhiya

ABSTRACT

Private defence is a notion that has developed through historical, legal, and ethical contexts. It is firmly based in the defence of an individual’s person and property. This article examines the historical development of the idea of private defence within the context of the Indian Penal Code and emphasises its importance in many legal systems across the globe. It addresses the right to self-defense, explaining its intricacies and bounds by analysing case law and legislative legislation. The essay discusses current developments in private defence, such as advances in technology and moral dilemmas related to the use of force. This essay offers insights into the complex balance between individual rights and society interests in the context of private defence through a thorough review of legal concepts and case studies. The purpose of the article is to further the current discussion on private defense’s place in preserving a safe and just society, as well as individual liberties.

Keywords

Private defence, Life, Property, Justice, Individual’s Right, Protection.

INTRODUCTION

In a world where personal security and property protection are paramount concerns, individuals often seek ways to enhance their safety beyond relying solely on public law enforcement. The concept of private defence has gained traction as an alternative or supplementary measure to address the vulnerabilities people face regarding their bodies and property. The use of unlawful means to defend oneself, another person, or property in addition to deterring criminal activity is known as private defence.

The idea of “private defence,” which has been employed in India, is not defined by the Indian Penal Code. Since there was no formal definition for these expressions, the judiciary was urged to define them. The legal right to defend oneself or one’s property against an act by another that would have been criminal if one had not used private defence is known as the right to private defence in India. The right to private defence, which permits people to shield their possessions, loved ones, and self from danger or harm, must be a part of individual liberty. The right to private defence is protected under Sections 96[1] through 106[2] of Chapter IV of the Indian Penal Code, 1860[3], the final 11 of which are General Exceptions.

HISTORICAL EVOLUTION

From ancient civilizations to modern legal systems, the concept of individuals defending themselves and their property has deep roots in the fabric of human history.

1. Ancient Civilizations: In ancient societies, individuals were often responsible for their own protection and that of their property. The oldest legal codes, such the Code of Ur-Nammu (c. 2100–2050 BCE) and the more famous Code of Hammurabi (c. 1754 BCE), which recognised people’s right to self-defense against violence, made this clear. Retaliation and self-defence were inherent elements of justice in these early legal systems.
2. Medieval Practices: The medieval period witnessed the emergence of feudal systems, where individuals were expected to safeguard their properties and territories. The concept of the castle and its defences became symbolic of this era. Castles were not only strategic strongholds but also private residences, and their inhabitants were tasked with protecting both their lives and possessions from external threats.[4]
3. Common Law Traditions: The development of common law in medieval England laid the groundwork for the modern legal understanding of self-defence. Concepts such as “hue and cry” required individuals to raise an alarm and come to the aid of fellow community members in the face of a threat. The notion that everyone had the right to defend themselves and others was strengthened by this shared obligation.
4. Emergence of Legal Principles: As legal systems evolved, specific principles governing self-defence began to emerge. The works of legal scholars such as Sir William Blackstone in the 18th century laid the foundation for recognizing the natural right to self-defence.[5]The emphasis on the use of proportional force and the protection of life and property became integral to legal discourse. Different legal traditions around the world have developed their own interpretations of private defence. While some jurisdictions adhere to the principles of self-defence with variations, others may emphasize the duty to retreat before using force. The diverse approaches highlight the cultural and legal nuances that shape societies’ views on private defence.
5. The American Experience: The Second Amendment to the US Constitution includes the right to bear weapons, which was inspired by English common law. This constitutional provision underscored the importance of private defence in preserving individual liberties.[6] The notion of a person’s home as their castle further solidified the idea of private defence against intrusions.

RELEVANT SECTIONS OF IPC RELATED TO PRIVATE DEFENCE

Section 96[7]: Things done in private defence

If any person exercises his/her right of private defence, it will not constitute any offence.

In order to exercise this right the person must proof that the right that he has exercised is legitimate. The principles as to right of private defence of body are as follows:

• The right of private defence cannot be exercised against the act which is not an offence under this code.
• The right of private defence can be exercised as soon as the act committed by other person caused the reasonable apprehension of danger to the body.
• Right of private defence is defensive in nature rather than punitive or retributive.
• The right of private defence should be used in balance or in proportion to the apprehension or the danger of the act caused by the other person.
• Sometimes right of private defence may be extended to the death of the other person. But there should be reasonable apprehension of the crimes enumerated in the Section 100(6) of IPC.

In the cases of right to private defence there is no need to the accused to proof the existence of the right of private defence beyond reasonable doubt.

Section 97[8]: Right of Private defence of the body and of the property

Every person has the right to defend their own body or the body of another against any offence injuring the human body. In addition, they are entitled to defend their immovable or mobile property from criminal trespass, theft, robbery, and mischief.

The right to self-defence is restricted to what is absolutely essential and should not go beyond what is required to repel violence.

The right to private defence may be used in the event that an offence is committed or attempted against the person exercising this right or against any other person. The right to private defence extends to the defence of one’s own person and property as well as the person and property of another.

Section 98[9]: Right of private defence against the act of a person of unsound mind, etc.

For a variety of reasons, such as youth, intoxication, lack of understanding maturity, or any misconception on the part of the person committing the act, every individual has the same right to private defence against an act as they would have if it were deemed to be so.

According to Section 98[10], one’s ability to exercise the right to private defence against an individual does not have to be hindered by their physical or mental state. Regardless of an attacker’s purpose or mental state, they are all entitled to the right to private bodily defence.

Section 99[11]: Act against which there is no right of private defence

Even though the act may not have been strictly justified by the law, the right to private defence under the IPC does not apply when there is no reasonable fear of death or serious damage caused by an act committed or attempted by a public servant acting in good faith under the guise of their official duty. Similarly, even while the direction may not be strictly justified by law, there is no right of private defence when the act is carried out or attempted under the supervision of a public servant working in good faith and representing their authority.

The right to private defence cannot be exercised when there is sufficient time to request government protection.

It is important to keep in mind that using one’s right to private defence shouldn’t do more harm than is necessary for defence.

Section 100[12]: Situations in Which the Right to Self-Defence of the Body extends to Causing Death

In certain situations, the right to private defence of the body permits the voluntary infliction of damage or death upon the attacker. Among these situations are:

• An attack that logically raises fears of death.
• An attack that logically raises concerns about serious injury.
• An attempt at sexual assault.
• A strike against satisfying unnatural lust.
• An attack with the goal of capturing or robbing someone.
• An attack intended to wrongly imprison someone when the victim has a reasonable fear that they won’t be able to get assistance from the government to be released.

In these types of cases the burden of proof would be on accused to show that there were circumstances giving rise to reasonable apprehension of death or grievous hurt or of any other offence.

Section 101[13]: When Such Right Extends to Causing Any Harm Other Than Death:

If the offence does not fall under one of the categories listed in the previous section, then the right to private defence does not extend to the ability to murder the attacker. Nonetheless, it does permit a range of injuries to be imposed on the assailant, with the exception of death, and within the parameters specified in Section 99[14] of the Indian Penal Code.

IPC Section 102[15]: Commencement and continuance of the Right of Private Defence of the body

The IPC’s right to private defence of the body is commenced when there is a reasonable concern that the body may be in danger as a result of an attempted or threatened crime, even if the crime has not yet been committed. As long as there is a continuous fear of injury, this right is in effect. However, a dread of danger must be based in fact rather than fiction. It is important to keep in mind that a right to private defence cannot exist without an actual attack and a genuine and immediate risk.

Section 103[16]: When the Right of Private Defence of Property Extends to Causing Death:

If the offence that gives rise to the exercise of this right fits into specific categories, the right of private defence of property permits the voluntarily infliction of death or injury on the wrongdoer, subject to the restrictions outlined in Section 99[17]. These include theft, housebreaking at night, mischief caused by fire on a building, tent, or vessel used as a place for people to live or store property, and trespassing into someone’s home in situations that would reasonably cause fear of death or serious harm if one’s right to private defence is not used.

Section 104[18]: When Such a right extends to causing any harm other than death

The right of private defence is not applicable to causing death if the offence that gives rise to the exercise of that right is theft, mischief, or criminal trespass, but not any of the descriptions listed in the previous section (referring to Section 103[19]). It does, however, extend to harming the wrongdoer in ways other than death, subject to the limitations outlined in Section 99[20].

This clause should not be read to allow the accused to in any way go beyond their right to a private defence.

Section 105[21]: Commencement and continuance of the right to private defence of property

The right to private property defence is triggered when there is a reasonable concern that the property is in danger. The continuance of this right varies based on the kind of offence being committed.
It is important to keep in mind that you can only exercise your right to private property protection in situations where you are forced to turn to the government for assistance. Furthermore, once a trespasser has successfully taken control of the contested territory, the legitimate owner forfeits their right to defend the property through private defence. Trespassers are not entitled to private defence while defending property that they are not legally in possession of.

Section 106[22]: Right to private defence against deadly assault when an innocent person is at risk

The right to private defence extends to anyone who is being attacked by a mob and has legitimate worries for their safety, even if exercising that right put innocent bystanders in peril. The defender in this case is allowed to risk injuring those innocent persons in order to defend themselves.
Any doubt or hesitation the defender may have had about exercising their right to private defence in circumstances when doing so could put innocent individuals in danger is removed by this clause. It ensures that even in situations where there might be a risk to others who are not involved in the attack, the defender can take the necessary measures to keep themselves safe.

COMMUNITY INVOLVEMENT

Private defence is not solely an individual endeavour; it can extend to communities and neighbourhoods. Neighbourhood watch programs, where residents collaborate to enhance local security, exemplify a collective approach to private defence. These initiatives involve vigilant community members who work together to identify and address potential threats.

Community-based private defence fosters a sense of shared responsibility, creating safer environments for everyone involved. Communication, cooperation, and the establishment of protocols for addressing security concerns contribute to the effectiveness of these community-driven initiatives.

LEGAL FRAMEWORKS

Private defence operates within the boundaries of the law, with legal systems varying across jurisdictions. In many countries, individuals have the right to defend themselves, their loved ones, and their property from imminent harm. However, the extent to which force can be used and the circumstances under which it is justifiable can differ. Understanding and adhering to local laws is crucial for anyone considering private defence measures.

Right to Self-Defence:

Self-defence is an evolving idea. It changes from time to time and from nation to nation based on the particulars of each instance. Globally, legal systems all have the core component of the right to self-defence, acknowledging the inherent human right to protect oneself from harm.[23] This section delves into the legal foundations governing the right to self-defence, offering a comprehensive analysis of how different legal systems recognize and regulate private defence. By examining case law and statutory provisions, this exploration aims to elucidate the intricacies and limitations associated with private defence within various legal frameworks. The Black’s Law Dictionary defines “se defendendo” as “defending himself, in Self-Defence, Homicide Committed as defendendo is excusable,” which appears to be the origin of the term “Self-Defence.” James Wilkinson expanded on its meaning to include the defence of one’s own person, rights, etc.

Right to Private defence:

The idea that the natural human right to self-preservation is the foundation for sections 96 to 106 of the Indian Penal Code[24], which define the law of private defence of one’s body and property, is allegedly the source of this law. These sections, grouped under the chapter IV subheading “General Exceptions,” “Right of Private Defence,” address the nature, extent, and subject matter of India’s right to self-defence as well as the limitations on when that right may be exercised. As a result, they provide a comprehensive legislative framework for the right of private defence[25]. These clauses stand alone as comprehensive legal measures, and their interpretation need not be based on the common law principles regulating the right of self-defense[26].

CASE LAW

Sukumaran v. State Rep. by the Inspector of Police AIR 2019[27]

In this case, the Court acquitted the accused, stating that “the right encompasses the protection of property, whether one’s own or another person’s, against offences like theft, robbery, mischief, and criminal trespass.” It only takes a legitimate fear to activate the right to self-defence. Stated differently, the right to private defence is independent of the offence actually being committed.

Darshan Singh v. State of Punjab, (2010) 2 SCC 333[28]

It was decided that when faced with an immediate threat to one’s life, one cannot be expected to act cowardly and has every right to kill the assailant in self-defence. The court said, in acquitting a murderer that the Legislature clearly intended to foster in people the spirit of self-defence in the event of a significant threat by passing Sections 96 to 106 of the IPC. The Court outlined ten guidelines for persons who possess the right to self-defense, but cautioned that utilising the pretext of self-defense does not permit endangering the lives and property of others or retaliating personally.

Kesho Ram v. Delhi Admn, (1974) 4 SCC 509[29]

The Indian Penal Code, Section 353/332/333, states that the appellant was found guilty and given the proper sentence. In this case the Court decided that even in cases where the legality of an act could not be shown, a public servant may assert immunity under Section 99 of the IPC provided he acted in good faith while doing his duties.

CONTEMPORARY TRENDS

Private defence is crucial in today’s world, as individuals need to protect themselves and their belongings from threats to body and property. As societies evolve, the dynamics of security and personal safety adapt to new challenges, making the discussion surrounding private defence nuanced. Technological advancements, such as cybersecurity, smart home devices, and Internet of Things, have expanded the scope of personal security, including data and privacy protection. The concept of private defence is deeply rooted in self-defence, but it requires a delicate balance between individual rights and societal interests. Debates surrounding gun control, home security systems, and personal safety training also highlight the relevance of private defence. The ongoing discourse on rights and responsibilities is essential for striking a balance between individual autonomy and community well-being.

CONCLUSION

This in-depth analysis of the Ground laws, case studies provides a comprehensive understanding of these legal concepts. It becomes evident that while these laws empower individuals to defend themselves, they also raise complex questions about the balance between personal autonomy and public safety.

From a legal standpoint, the right to self-defence is recognized in many jurisdictions worldwide. However, the extent to which force can be used in self-defence varies, and the use of excessive force may result in legal consequences. Therefore, individuals must be well-informed about the laws governing private defence to avoid unintended legal repercussions.

REFERENCES

1. Indian Penal Code, Act No. 45 of 1860.
2. https://thelawbrigade.com/wp-content/uploads/2021/07/AJMRR_Kabir-Chichiriya.pdf
3. Medieval Castles: Function, Design, and Significance, Maup van de Kerkhof, European History, https://historycooperative.org/medieval-castles/ .
4. Willman, R. (1983). Blackstone and the “Theoretical Perfection” of English Law in the Reign of Charles II. The Historical Journal, 26(1), 39–70. http://www.jstor.org/stable/2638848 .
5. Cress, L. D. (1984). An Armed Community: The Origins and Meaning of the Right to Bear Arms. The Journal of American History, 71(1), 22–42. https://doi.org/10.2307/1899832 .
6. Medecins Sans Frontiers, The Practical Guide to Humanitarian Law, https://guide-humanitarian-law.org/content/article/3/self-defence/ .
7. R. Mangayarkarasi, The Concept of Private Defence-A Comparative Study, Volume No. 10, Issue No. 08, August 2021, http://www.ijstm.com/images/short_pdf/1628405747_1020.pdf .
8. Barisa Mundi v State, AIR 1959 Pat 22, (1959) CrLJ 71.
9. Onder Bakircioglu, THE RIGHT TO SELF-DEFENCE IN NATIONAL AND INTERNATIONAL LAW: THE ROLE OF THE IMMINENCE REQUIREMENT, mckinneylaw.iu.edu/iiclr/pdf/vol19p1.pdf .
10. 2 WILIM BLACKSTONE, COMMENTARIEs ON THE LAWS OF ENGLAND 145 (5th ed., Cavendish Publishing Limited, The Glass House, 2001). https://files.libertyfund.org/files/2140/Blackstone_1387-01_EBk_v6.0.pdf
11. Sukumaran v. State Rep. by the Inspector of Police AIR 2019.
12. Yash Agarwal, The Right of Private Defense in Indian Criminal Justice System, 08 July 2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3626681 .

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[1] Indian Penal Code, § 96, Act No. 45 of 1860.

[2] Indian Penal Code, § 106, Act No. 45 of 1860.

[3] Indian Penal Code, Act No. 45 of 1860.

[4] Medieval Castles: Function, Design, and Significance, Maup van de Kerkhof, European History, November 15, 2023, https://historycooperative.org/medieval-castles/ .

[5] Willman, R. (1983). Blackstone and the “Theoretical Perfection” of English Law in the Reign of Charles II. The Historical Journal, 26(1), 39–70. http://www.jstor.org/stable/2638848 .

[6] Cress, L. D. (1984). An Armed Community: The Origins and Meaning of the Right to Bear Arms. The Journal of American History, 71(1), 22–42. https://doi.org/10.2307/1899832 .

[7] Ibid.

[8] Indian Penal Code, § 97, Act No. 45 of 1860.

[9] Indian Penal Code, § 98, Act No. 45 of 1860.

[10] Ibid.

[11] Indian Penal Code, § 99, Act No. 45 of 1860.

[12] Indian Penal Code, § 100, Act No. 45 of 1860.

[13] Indian Penal Code, § 101, Act No. 45 of 1860.

[14] Ibid.

[15] Indian Penal Code, § 102, Act No. 45 of 1860.

[16] Indian Penal Code, § 103, Act No. 45 of 1860.

[17] Ibid.

[18] Indian Penal Code, § 104, Act No. 45 of 1860.

[19] Ibid.

[20] Ibid.

[21] Indian Penal Code, § 105, Act No. 45 of 1860.

[22] Indian Penal Code, § 106, Act No. 45 of 1860.

[23] Medecins Sans Frontiers, The Practical Guide to Humanitarian Law, https://guide-humanitarian-law.org/content/article/3/self-defence/ .

[24] Indian Penal Code, Act No. 45 of 1860.

[25] R. Mangayarkarasi, The Concept of Private Defence-A Comparative Study, Volume No. 10, Issue No. 08, August 2021, http://www.ijstm.com/images/short_pdf/1628405747_1020.pdf .

[26] Barisa Mundi v State, AIR 1959 Pat 22, (1959) CrLJ 71, http://www.ijstm.com/images/short_pdf/1628405747_1020.pdf.

[27] Sukumaran v. State Rep. by the Inspector of Police AIR 2019.

[28] Darshan Singh v. State of Punjab, (2010) 2 SCC 333.

[29] Kesho Ram v. Delhi Admn, (1974) 4 SCC 509.

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