PRIVATE DEFENCE AGAINST BODY AND PROPERTY

This article is written by Ashwitha.T of 4^th Semester of ICFAI Law school Hyderabad

ABSTRACT

The fundamental principle of criminal law is self-help. The “Indian Penal Code, 1860”, “sections 96 to 106”, which deal with the right to personal defence of one’s person and property, include the key legal provisions. The protection of people’ lives and property is the state’s first priority. However, the reality is that the government cannot veto every action taken by its citizenry. If a public worker working in good faith and in the course of his employment commits or attempts to commits an act that does not reasonably give rise to fear of death or great bodily harm, even if the conduct may not be precisely legal, there is no “right of private defence”.

Key words: Indian Penal Code 1860, Right to private defence.

INTRODUCTION

‘Might is right’ was the sole law that applied in the past, before civilization had even begun. As society developed, the State stepped in to safeguard both the lives and the assets of its citizens, but it soon became clear that the State is not in position to provide protection. Accordingly, individuals were given the freedom to protect their lives and property by harming anybody attempting to threaten them with both minor and serious injuries, as long as they stayed within the boundaries of the law.

Private defensive rights have existed in India since antiquity. Ancient law-makers held that murder was acceptable if it was carried out when there was a threat to human life. Self-help is a fundamental principle of criminal law that is widely recognised. It is a notion that allows a person to defend oneself from force or bodily injury when the situation calls for it, even if the person’s conduct or behaviour is illegal. Self-defence refers to the right to defend oneself against any force or violence that is injurious to one’s person, body, or property. Criminal law is a set of regulations and a piece of legislation that forbids crime. Crime is any behaviour that is against the law and subject to punishment. The main idea behind the “right to private defence” is that it is legal to resist or stop force being used to commit a crime in self-defence. Self-defense is a natural right that is inalienable. One of the most fundamental liberties guaranteed by Article 21 of our Constitution, which covers a very wide range of rights, is the right to life. This right involves not only the protection of an individual’s life but also their liberty and their property. Therefore, having the right to personal defence is very essential for preserving one’s life, property and liberty

“The Indian Penal Code’s” section 96 to 106, titled “General Exceptions,” provides a thorough explanation of the “right to a private defence” in criminal law. The notion of “the right to private defence” was discussed in this research work in the context of several case laws and the judicial perspective of the Court of Law.[1]

Definition of Private Defence

• Any offence against a person or piece of property is typically justified by the right to private defence. It accomplishes an asocial goal. It is founded on the fundamental tenet that a man’s first responsibility is to look out for himself. It not only suppresses undesirable qualities but also promotes moral behaviour in a free individual.
• According to Bentham’s Fundamentals of the “India Penal Code”, It is imperative that everyone has the right to defence. Magistrates’ diligence will never be able to compensate for each person’s diligence on his or her own behalf. As opposed to the terror of all individual opposition, the fear of the law can never keep evil men in check. If these rights are taken away, you lose your freedom.

PROPOSITIONS

Self-defense as a whole is based on four principles:

1. Society takes on this responsibility and, for the most part, is successful in defending private citizens from unauthorised assaults on their lives and assets.
2. That it needs to be reported to anywhere it can get help
3. That the person can take all essential precautions to safeguard himself if its assistance cannot be acquired.
4. However, the violence must not be used to satisfy vengeful or spiteful impulses, but rather must be utilised with regard to the harm to be avoided.[2]Definition Of Private Defence
5. “Self-defence”
6. Self-defense is an adaptable idea. This implies that the legal framework for self-defence is not set in stone and instead fluctuates from nation to nation and from time to time based on the specifics of each case. The idea of self-defence has changed significantly from ancient times to the present. Prior to modern times, the rule of law was “might makes right,” and the idea of a defence to criminal prosecution had no relevance in criminal law But as society became more civilised, the idea of the state emerged, and as part of the state’s duty to safeguard citizens’ lives and property, the criminal code contains statutory restrictions.
7. The state often maintains the sole authority of violence in a society that is democratic, meaning that only the state is permitted to employ action against and punish wrongdoers. However, there may be times when a person or his property is in immediate danger and neither the state machinery nor any other authority can be of assistance. In these cases, no other option is available. A man is permitted to use force in certain circumstances in order to dissuade the imminent danger to his or another man’s property. This is the private “defensive right”. The Latin verb “se defendendo” means “to defend oneself” or “private defence,” and the word “self-defence” is derived from this verb. When an
8. individual lacks the resources to rely on the protection of the legal system to protect himself or their property, it serves as a form of justificatory defence.[3]

b. “Private defence”

There is no definition for “private defence” in “Indian Penal Code”. In the lack of a legal definition, the judiciary was requested to define “private defence.”. The capacity to defend oneself or another’s body only with one’s own resources is referred to as the “right to private defence”, i.e., without the aid of government apparatus. This means that it is a person’s right to protect himself or another from any assault or harm that might result in death or serious injury if recourse or assistance from State machinery cannot be obtained. Additionally, such self-defence is an exemption to criminal culpability, meaning the defender is not in violation of the law.

 In Mohammad Khan v State of Madhya Pradesh[4]

The Apex court stated that fleeing from danger is the only behaviour that is more humiliating to the human being. Thus, the “right to private defence” is intended to serve a communal good and should be encouraged within the established parameters.

The foundation of the “right to private defence” is self-help. “The right of defence is absolutely necessary,” claims Bentham. Magistrates’ diligence will never be able to compensate for each person’s diligence on his or her own behalf.

Two guiding concepts serve as the cornerstones of private defence law:

1. Protection of each and every individual’s body and property is their right. He is not required to be a coward under the law.
2. This right can’t be used as a pretext for justifying aggressiveness, which is defined as harming another individual, nor for inflicting only the minimum amount of injury required for self-defence.[5]

SCOPE AND NATURE OF PRIVATE DEFENCE

• The natural right to one’s own defence is one that one is born with. Taking advantage of such a privilege cannot be compared to any ideal standard, therefore it varies from circumstance to circumstance and from society to society. According to Section 96 of the IPC, acting in “self-defence” is not unlawful, and Section 97 lists two different forms of “self-defence rights”: the first is the “right to defend” a person, and the second is the “right to defend” plot of individual. Section 97 usually explains that an individual has the “right to defend” not only his own “body” and “property” but also another person’s “body and property”, this can be exercised by the right to private defence.
• Although there are some legal limitations, the right to private defence is not unrestricted. Certain limitations on the applicability of the “right to private defence” are provided by Section 99 of the IPC, which may be necessary to prevent the use or abuse of the right to “private defence” for illegal purposes.[6]

Statutory Provision for self-defence in India

“Section 96 of Indian Penal Code[7]”

• This particular section discusses actions taken in “self-defence” and clarifies that nothing carried out in the practise of that right constitutes a crime. The use of one is right to “private defence” is not illegal and is really an act of “self-defence”. Section 99 of the Constitution, which provides that the right in no circumstances extends to causing more harm than is necessary for self-defence, makes it plain that the right to self-defence under Section 96 is not absolute and must always be exercised in “self-defence”. The individual who asserts the “right to private defence” has the burden of evidence.
• Therefore, it is not acceptable to enable this privilege to be utilised as a justification for a deed. Whether the accused has in fact exercised this privilege depends on a very detailed analysis of the information and situations of each case. While exercising this privilege, the accused has no place making conclusions. To use the “right of private defence”, there must be a valid concern about the risk of an attack.[8]

“Section 97 of Indian Penal Code[9]”

• Subject to the restrictions in section 99, every person has the right to protect their own body and the body of another against any crime that harms the human body. If the offence involves movable or immovable property and is classified as “theft”, “robbery”, “mischief”, or “criminal trespass”, or if there is a commitment to conduct one of these crimes, the “right to private defence” is also applicable.[10]

“Section 98 of Indian Penal Code[11]”

• This section includes, among other things, the Right of “Private Defence” Against the Law of an Individual of Unsound Mind. The right to a private defence also applies in situations when there would not be an offence if it were not for the person’s lack of comprehension, their insanity, their intoxication, or some other misperception on their part. Everyone is entitled to the same “private defence” against the conduct as they would have been if the act was considered illegal.[12]

“Section 99 of Indian Penal Code [13]”

The application of the “right to private defence” is constrained by “Section 99”. It lists all of the many situations in which the “right to private defence” must be invoked or made use of.

Section 99’s first three clauses state that this privilege cannot be used when

• When doing his legal duties in good faith, a public employee does so without raising any immediate danger of death or serious injury.
• Any individual exercising their legal obligation while under the guidance of a public official in good faith without reckless disregard for their safety.
• There is enough time to seek for governmental assistance.
• There must be solid evidence that the conduct was carried out by someone with official status.[14]

“Section 100 of Indian Penal Code[15]”

The following six acts of assault are so grave in character that the law grants the defence the authority to even bring the attacker to death:

• An assault that may legitimately lead one to believe that death will be the result of the attack.
• An assault that may fairly give rise to the concern that it will end up causing severe harm.
• attack committed with the aim to rape.
• An offence committed with the goal to satisfy unnatural lust.
• An offence with the purpose to kidnap or abduct someone.
• An offence with the purpose of forcibly keeping someone in a position where he or she would fairly believe that he or she will not be able to seek release from the authorities.[16]

“Section 101 of Indian Penal Code[17]”

• his clause describes the conditions under which engaging in self-defence may entail causing harm other than death. The right to “private defence” of the body does not include purposefully murdering an attacker if the crime is not of the type covered by the aforementioned clause; instead, it includes inflicting harm other than death on the assailant.[18].

“Section 102 of Indian Penal Code[19]”

Even though a crime has yet to be committed, the right to “self-defence” starts the minute there is a plausible possibility there will be physical injury as a consequence of an endeavour or threat to perform an offence. It goes on so long because there is a solid suspicion that someone will get hurt.[20]

In Jai Dev v. State of Punjab[21]

The Apex court ruled that the “right to private defence” against a crime that raises the possibility of death or serious injury expires as soon as the assault is no longer a threat and there is no longer any reason to fear harm. If the accused fire rifle bullets at the attackers after they have all fled and kill others who are far away, they cannot use their “right to a private defence” and are liable of murder[22].

RIGHT OF PRIVATE DEFENCE OF THE PROPERTY

“Section 103 of Indian Penal Code[23]”

• The “right to private property” defence under Section 103 expands to the unforced infliction of death in cases of theft, burglary, theft, or mischief when such mischief is committed under conditions that may reasonably cause an appropriate fear of death or serious injury if the “right of private defence” is not applied, subject to the restrictions mentioned in Section 99.[24].

“Section 104 of Indian Penal Code[25]”

• According to this, if committing or attempting to commit any crime leads in the application of the “self-defence” right, this right is not applicable to intentionally inflicting bodily injury on the offender but rather to intentionally inflicting any harm apart from death. Providing the crime does not fit into any of other groups listed in the part before it. [26]

“Section 105 of Indian Penal Code[27] ”

• This clause, like section 102, specifies the moment at which the right to private property protection kicks in as soon as there is a plausible suspicion that the property is under danger. The continuation depends on the type of offence committed. When someone steals anything, the crime doesn’t finish until the offender leaves with the item, someone gets help from the police, or the item is found. In robbery instances, it goes on as long as the perpetrator kills or hurts someone or as long as immediate personal constraint is maintained. When there has been criminal trespass or mischief, the right is still in effect as long as the offence is still being committed.[28]

“Section 106 of Indian Penal Code[29]”

• Private protection from lethal attack is mentioned in this section whenever there is a possibility of injury to an honest person. If a person’s exercise of their right to “self-defence” against an assault result in a reasonable fear of death, that person’s right to “self-defence” extends to taking that risk if they are unable to effectively exercise it without endangering innocent parties.
• The main huddle is the defender’s uncertainty about whether he is permitted to utilise his right even if there is a chance that his activities may damage some innocent people. As per this Section, if an opponent is in a circumstance where there is a danger of injury to an innocent victim during an assault that leaves them with a legitimate fear of death, they are free to take that risk and use their right to “self-defence”[30].

Conclusion

The “right to self-defence” is a tool available to Indian citizens, however it is frequently abused or utilised for immoral or illegal ends. The task of the court is to determine whether or not the right was used in a lawful manner.

The amount to which the “right of private defence” may be exercised relies on the genuine fear of harm, not on the presence of such threat. Only a few circumstances allow for a limited extension of this privilege. Only the minimum amount of force required to stop the attack should be utilised[31].

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[1] Asst.Prof. Seema A. Patil “Evolving Judicial Approach Towards Right To Private Defence Against Body”Volume-1 Kesari Maharatta Trust 1(2023)

[2] What is Right to Private Defence? available at <https://lawcorner.in/what-is-the-right-of-private-defence-of-a-person/> (last visited on June 4,2023)

[3] Asst.Prof. Seema A. Patil “Evolving Judicial Approach Towards Right To Private Defence Against Body” Volume-1 Kesari Maharatta Trust 1(2023)

[4]

[5] Asst.Prof. Seema A. Patil “Evolving Judicial Approach Towards Right To Private Defence Against Body” Volume-1 Kesari Maharatta Trust 1(2023)

[6] ibid

[7]Indian Penal Code ,1860 s.96.

[8]    “Self-defence Laws In India” available at :<https://legodesk.com/legopedia/right-of-private-defence/> (last visited on june4,2023)

[9] Indian Penal Code ,1860 s.97.

[10]What is Right to Private Defence? available at https:<//lawcorner.in/what-is-the-right-of-private-defence-of-a-person/> (last visited on June 4,2023)

[11] Indian Penal Code ,1860 s.98

[12] ibid

[13] Indian Penal Code ,1860 s.99.

[14] “Self-defence Laws In India” available at :<https://legodesk.com/legopedia/right-of-private-defence/> (last visited on june4,2023)

[15] Indian Penal Code ,1860 s.100.

[16] What is Right to Private Defence? available at< https://lawcorner.in/what-is-the-right-of-private-defence-of-a-person/> (last visited on June 4,2023)

[17]Indian Penal Code ,1860 s.101.

[18] Ibid

[19] Indian Penal Code ,1860 s.102.

[20] What is Right to Private Defence? available at <https://lawcorner.in/what-is-the-right-of-private-defence-of-a-person/> (last visited on June 4,2023)

[21]Jai Dev v. State of Punjab, AIR 1963 SC 340

[22] ibid

[23] Indian Penal Code ,1860 s.103.

[24] ibid

[25] Indian Penal Code ,1860 s.104.

[26] Self-defence Laws In India available at :<https://legodesk.com/legopedia/right-of-private-defence/> (last visited on june4,2023)

[27] Indian Penal Code ,1860 s.105.

[28] ibid

[29] Indian Penal Code ,1860 s.106.

[30] “Self-defence Laws In India” available at :<https://legodesk.com/legopedia/right-of-private-defence/> (last visited on june4,2023)

[31] ibid