By Simran, Chanakya National Law University, Patna
Editor’s Note: The state has the duty to protect its citizens and their property from harm. However, circumstances may arise when the aid of state machinery is not available and there is imminent danger to a person or his property. In such situations, a person is allowed to use force to ward-off the immediate threat to his or someone else’s person or property. This is the right of private defence. The people are endowed with this right so that they can defend themselves and their property and not hesitate due to fear of prosecution.
The right, in some circumstances even extends to causing death of the person who poses such a threat. But such a right is subject to some restrictions and not available in all circumstances. It is only allowed when the danger to life or property is immediate and the accused is not the aggressor. The right of private defence is not available against public servants acting in exercise of their lawful powers. A person is allowed to use only reasonable force; a force that is proportionate to the impending danger.
Sections 96 to 106 of the Indian Penal Code state the law relating to the right of private defence of person and property. The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property when immediate aid from the state machinery is not readily available; and in so doing he is not answerable in law for his deeds.
Self-help is the first rule of criminal law. The right of private defence is absolutely necessary for the protection of one’s life, liberty and property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. The use of force to protect one’s property and person is called the right of private defence[i].
150 years ago, during colonialism, an enthusiastic Macaulay proposed a right of private defence in his draft code with the ambitious project of encouraging a ‘manly spirit’ among the ‘natives’. The ideal Indian would stand his ground in the face of danger and not hesitate to defend his own body or property or that of another. He would respond with defensive force to prevent certain crimes, even to the extent of causing death. As a general idea, the right of private defence permits individuals to use defensive force which otherwise be illegal, to fend off attacks threatening certain important interests. Like the defence of necessity, the right of private defence authorizes individuals to take the law into their own hands[ii].
Private Defence: Meaning And Types
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. Some of the aspects of the right of private defence under the IPC are that no right of self-defence can exist against an unarmed and unoffending individual, the right is available against the aggressor only and it is only the person who is in imminent danger of person or property and only when no state help is available. The right of private defence is a natural right which is evinced from particular circumstances rather than being in the nature of a privilege[iii].
However, the most important principle is that the right of private defence requires that the force used in the defence should be necessary and reasonable in the circumstances. But, in the moments of disturbed mental condition, this cannot be measured in golden scales. Whether the case of necessity exists must be determined from the viewpoint of the accused and his act must be viewed in the light of the circumstances as they appear on such occasion. Specific limitations have also been provided for when the right cannot be validly exercised and also the provision specifies clearly the cases in which the right can extend to the causing of death of the aggressor.
The reasonable apprehension can only be justified if the accused had an honest belief that there is danger and that such belief is reasonably warranted by the conduct of the aggressor and the surrounding circumstances. This brings in an iota of an objective criterion for establishing ‘reasonableness.’ The imminence of danger is also an important prerequisite for the valid exercise self-defence[iv]. Thus, there should be a reasonable belief that the danger is imminent and that force must be used to repel it.
Nature Of The Right
It is the first duty of man to help himself. The right of self-defence must be fostered in the citizens of every free country. The right is recognized in every system of law and its extent varies in inverse ratio to the capacity of the state to protect life and property of the citizens. It is the primary duty of the state to protect the life and property of the individuals, but no state, no matter how large its resources, can afford to depute a policeman to dog the steps of every rouge in the country.
One thing should be clear that there is no right of private defence when there is time to have recourse to the protection of police authorities. The right is not dependent on the actual criminality of the person resisted. It depends solely on the wrongful or apparently wrongful character of the act attempted and if the apprehension is real and reasonable, it makes no difference that it is mistaken. An act done in exercise of this right is not an offence and does not, therefore, give rise to any right of private defence in return[v].
Private Defence In The Indian Legal System
Jeremy Bentham, an English Legal Luminary, once opined, “This right of defense is absolutely necessary. The vigilance of the Magistrates can never make up for vigilance of each individual on his own behalf. The fear of the law can never restrain bad men so effectually as the fear of the sum total to individual resistance[vi]. Take away this right and you become, in so doing, the accomplice of all bad men.” This right is based on two principles,
- It is available against the aggressor only, and
- The right is available only when the defender entertains reasonable apprehension.
There are three tests for ascertaining reasonable apprehension; they are the objective, subjective and expanded objective tests. While objective test emphasizes as to how in a similar circumstance an ordinary, reasonable, standard and average person will respond, the subjective test examines the mental state based on individual attitude. However, expanded objective test, being a combination of aforesaid two tests, bases its inquiry to determine whether or not the individual acted as a reasonable person.
Right of private defence serves a social purpose and the right should be liberally construed. Such a right is not only a restraining influence on corrupt characters but also encourages manly spirit in a law abiding citizen. It should not be narrowly construed as it necessitates the occasions for the exercise of this right as an effective means of protection against wrong doers.
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.
Right of private defence cannot be said to be an offence in return. The right of self-defence under Section 96 is not ,absolute but is clearly qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. It is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts. The right of private defence will completely absolve a person from all guilt even when he causes the death of another person in the following situations, i.e
- If the deceased was the actual assailant, and
- If the offence committed by the deceased, which occasioned the cause of the exercise of the right of private defence of body and property falls within anyone of the six or four categories enumerated in Sections 100 and 103 of the penal code.
Section 97 talks about Right of private defence of the body and of Property: – Every person has a right, subject to the restrictions contained in Section 99, to defend-
First-His own body, and the body of any other person, against any offence affecting the human body;
Secondly-The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal trespass.
This Section limits exercise of the right of private defence to the extent of absolute necessity. It must not be more than what is necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor. This Section divides the right of private defence into two parts, i.e. the first part deals with the right of private defence of person, and the second part with the right of private defence of property[vii].
Section 99 lays down the acts against which there is no right of private defence: – 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.
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[viii]. 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.
- Section100 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.
To invoke the provisions of Section 100 of I.P.C., four conditions must exist:-
- The person exercising the right of private defense must be free from fault in bringing about the encounter,
- There must be an impending peril to life or of great bodily harm,
- There must be no safe or reasonable mode of escape by retreat,
- There must have been a necessity for taking life.
Section101 prescribes 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[ix].
Section102 is very important as it deals with the commencement and continuance of the right of private defence of the body:
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. The apprehension of danger must be reasonable, not fanciful. For example, one cannot shoot one’s enemy from a long distance, even if he is armed with a dangerous weapon and means to kill. This is because he has not attacked you and therefore there is no reasonable apprehension of attack. In other words, there is no attack and hence no right of private defence arises. Moreover the danger must be present and imminent[x].
Section103 specifies when the right of private defence of property extends to causing death: –
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: Robbery, House-breaking by night, Mischief by fire committed on any building, tent or vessel, which building, tent of vessel is used as a human dwelling, or as a place for the custody of property, 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.
Section 103 provides the right of private defence to the property whereas Section 100 is meant for exercising the right of private defence to the body of a person. It justifies homicide in case of robbery, house breaking by night, arson and the theft, mischief or house trespass which cause apprehension or grievous harm. If a person does not have possession over the property, he cannot claim any right of private defence regarding such property[xi]. Right to dispossess or throw out a trespasser is not available to the true owner if the trespasser has been successful in accomplishing his possession to his knowledge. This right can be only exercised against certain criminal acts that are mentioned under this section.
Section104 tells us when such right extends to causing any harm other than death:-
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 wrongdoer of any harm other than death. This Section cannot be said to be giving a concession to the accused to exceed their right of private defence in any way[xii]. If anyone exceeds the right of private defence and causes death of the trespasser, he would be guilty under Section 304, Part II. This Section is corollary to Section 103 as Section 101 is a corollary to Section 100.
Section105 prescribes the commencement and continuance of the right of private defence of property: –
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 affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered[xiii]. 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 of 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.
Section106 talks about right of private defence against deadly assault when there is risk of harm to innocent person: –
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 or private defence extends to the running of that risk.
Evolution of the Right of Private Defence
In Roman law, homicide was considered to be an act by which the life of a human-being was taken away. There were two degrees of criminal homicide, namely, murder and manslaughter, and two degrees of homicide that did not expose a person to punishment, namely, justifiable and excusable. Self-defence was placed in the category of justifiable homicide. In self-defence violence was lawful: ‘Vim enim vi defendere omnes leges emniaque jure permittunt’ (A man, therefore, incurs no liability, if he kills another’s slave who attacks him.)[xiv]. The Justinian code and the Twelve Tables reiterated this right of private defence- the Code holding that no greater force than what was sufficient to ward off the threatened danger was permitted and the Tables on the other hand, allowing killing in such a case without restrictions regarding it to be permissible self-redress rather than self-defence.
Under English law the status of the right of self-defence underwent a series of changes through the ages. In the ancient period, there was absolute liability even for homicide committed se defendendo. In the Medieval period, the theory of pardon developed and it became excusable, whereas in the Modern Age, homicide committed in self-defence is treated as justifiable, because it is presumed that such an act is not backed with evil intent.
In the early days, the law regarded the word and the act of the individual but it did not search the heart of the man. It was the age of strict liability[xv]. Man was held responsible for his acts irrespective of his intentions. His mental state was not taken into account when determining liability for the commission of the crime. It was the external conduct and the injury upon which liability was imposed. The accidental injuries and the injuries inflicted during self-defence, also attracted liability. Thus, criminal liability was not related to the evil intention of the actor.
However, in the 13th century there was a shift from strict liability and emphasis was laid on the mental element. During this period, killing was justified in a few exceptional cases. One who killed in misadventure, or in self-defence was still guilty of a crime, although he deserved a pardon from the King[xvi]. During the Medieval period, though the accused obtained pardon yet he forfeited his goods for the crime committed in self-defence.
The moral sense of the community could not tolerate indefinitely the idea that a blameless self-defender was a criminal. Ultimately, the jury was allowed to give a verdict of not guilty in such cases. Pardon of the King soon became a formality in such cases and thus grew the concept of excusable homicide. The act of pardon was a kind of excuse[xvii]. The word excuse itself denoted the condonation of wrong committed by the offender. Blackstone perceived the essence of excuses to be ‘the want or defect of will’. This all changed in the modern period. In modern times, there is a presumption that there is no mens rea in the homicides committed in self-defence and as such it has become a justifiable general defence in law. Thus, now no criminal liability is attached to the accused in such cases. This is in conformity with the provisions of Article 2 of the European Convention on Human Rights.
Thus, in modern times every evolved legal system has accepted the right of self-defence as a universal one.
Private Defence In Various Legal Systems
As the common law system does not provide a statutory definition of self-defence, it is often the opinions of legal authorities that are relied upon. Black’s Law Dictionary enumerates two elements that are necessary to constitute self-defence, namely:
- Accused does not provoke difficulty, and
- There must be impending peril without convenient or reasonable mode of escape.
On the other hand Glanville Williams’ analysis of the elements is more comprehensive: –
- The force is threatened against the person,
- The person threatened is not the aggressor,
- The danger of harm is imminent,
- The force is unlawful,
- The person threatened must actually believe that a danger exists, that the use of force is necessary and that the kind and amount of force being used is required in the circumstances, and that the above beliefs are reasonable[xviii].
The position under American law is also very similar. Great importance is given to the following concepts when dealing with the concept of self-defence.
- Requirement of reasonableness (a reasonable and honest belief is essential),
- Only that amount of force should be used which reasonably appears necessary to prevent the threatened harm.
Thus, it can be seen that in the various legal systems of the world, there are certain common established principles pertaining to self-defence.
Judicial View on Private Defence
The protection of life and property is axiomatic in every civilized society and because it is impossible for the State to do so on every occasion – as law enforcement officers cannot be omnipresent, the individual is given the right of private defence. The right of private defence legally accords to the individuals the right to take reasonably necessary measures to protect themselves under special circumstances. Notably, on the execution of the private defence provisions in the Penal Code, the framers said “we leave it still in a very imperfect state…we are inclined to think that it must always be one of the least exact parts of every system of criminal law[xix].” This suggests that they recognized the necessity for latent ambiguity to allow judges the flexibility to read and apply the provisions so as to achieve fairness.
However, the local courts have overlooked this discretion conferred upon them and instead opted for a far too restrictive (and even unreasonable) interpretation of the provisions to the extent where private defence is hardly adequate as a defence, defeating the intention of the provision. The inconsistency between the judicial interpretation and the intention of the Code framers is exemplified in the interpretation of “reasonable apprehension” under Sections 100 and 102[xx]. Evidently, the local courts have adopted a strict objective approach in determining “reasonable apprehension”, ignoring its inherent ambiguity. This is in contrast to the current English law that judges the nature of the danger wholly according to that of the accused’s perception (purely subjective test).
Darshan Singh v. State of Punjab[xxi]
The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It observed that a person cannot be expected to act in a cowardly manner when confronted with an imminent threat to life and has got every right to kill the aggressor in self defense. A bench comprising Justices Dalveer Bhandari and Asok Kumar Ganguly, while acquitting a person of murder, said that when enacting Section 96 to 106 of the IPC, the Legislature clearly intended to arouse and encourage the spirit of self-defense amongst the citizens, when faced with grave danger.
“The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court, there is nothing more degrading to the human spirit than to run away in face of danger. Right of private defense is thus designed to serve a social purpose and deserves to be fostered within the prescribed limit[xxii].”
The court laid down ten guidelines where right of self-defence is available to a citizen, but also warned that in the disguise of self-defence, one cannot be allowed to endanger or threaten the lives and properties of others or for the purpose of taking personal revenge. The apex court concluded by saying that a person who is under imminent threat is not expected to use force exactly required to repel the attack and his behaviour cannot be weighed on “golden scales.”
The Court declared their legal position under the following 10 guidelines[xxiii]:
- Self-preservation is a basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defense within certain reasonable limits.
- The right of private defense is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
- A mere reasonable apprehension is enough to put the right of self-defense into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defense. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defense is not exercised.
- The right of private defense commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.
- It is unrealistic to expect a person under assault to modulate his defense step by step with any arithmetical exactitude.
- In private defense the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
- It is well settled that even if the accused does not plead self-defense, it is open to consider such a plea if the same arises from the material on record.
- The accused need not prove the existence of the right of private defense beyond reasonable doubt.
- The Indian Penal Code confers the right of private defense only when the unlawful or wrongful act is an offence.
- A person who is in imminent and reasonable danger of losing his life or limb may, in exercise of self defense, inflict any harm (even extending to death) on his assailant either when the assault is attempted or directly threatened.
Yogendra Moraji v. State[xxiv]
The Supreme Court discussed in detail the extent and the limitations of the right of private defence of body. One of the aspects emphasized by the court was that there must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant. This aspect has create quite a confusion as it indirectly suggests that once should first try to see the possibility of a retreat than to defend by using force, which is contrary to the principle that the law does not encourage cowardice on the part of one who is attacked. But another viewpoint is that this retreat theory in fact is an acceptance of the English common law principle of defence of body or property under which the common law courts always insisted to look first as to whether the accused could prevent the commission of crime against him by retreating.
Nand Kishore Lal v. Emperor[xxv]
Accused who were Sikhs, abducted a Muslim married woman and converted her to Sikhism. Nearly a year after the abduction, the relatives of the woman’s husband came and demanded that she return. The accused refused to comply and the woman herself expressly stated her unwillingness to rejoin her Muslim husband. Thereupon the husband’s relatives attempted to take her away by force. The accused resisted the attempt and in so doing one of them inflicted a blow on the head of the woman’s assailants, which resulted in the latter’s death. It was held that the right of the accused to defend the woman against her assailants extended under this section to the causing of death and they had, therefore, committed no offence.
Mohinder Pal Jolly v. State of Punjab[xxvi]
Workers of a factory threw brickbats from outside the gates, and the factory owner by a shot from his revolver caused the death of a worker, it was held that this section did not protect him, as there was no apprehension of death or grievous hurt.
Mithu Pandey v. State[xxvii]
Two persons armed with ‘tangi’ and ‘danta’ respectively were supervising collection of fruit by labourers from the trees that were in the possession of the accused persons who protested against the act. In the altercation that followed one of the accused suffered multiple injuries because of the assault. The accused used force resulting in death. The Patna High Court held that the accused were entitled to the right of private defence even to the extent of causing death.
Jassa Singh v. State of Haryana[xxviii]
The Supreme Court held that the right of private defence of property would not extend to the causing of the death of the person who committed such acts if the act of trespass is in respect of an open land. Only a house trespass committed under such circumstances as may reasonably caused death or grievous hurt is enumerated as one of the offences under Section 103.
In general, private defence is an excuse for any crime against the person or property. It also applies to the defence of a stranger, and may be used not only against culpable but against innocent aggressors.
The defence is allowed only when it is immediately necessary-against threatened violence. A person who acts under a mistaken belief in the need for defence is protected, except that the mistake must be reasonable. In principle, it should be enough that the force used was in fact necessary for defence, even though the actor did not know this; but the law is not clear. There is no duty to retreat, as such, but even a defender must wherever possible make plain his desire to withdraw from the combat. The right of private defence is not lost by reason of the defender’s having refused to comply with unlawful commands.
The force used in defence must be not only necessary for the purpose of avoiding the attack but also reasonable, i.e. proportionate to the harm threatened; the rule is best stated in the negative form that the force must not be such that a reasonable man would have regarded it as being out of all proportion to the danger[xxix].
The carrying of firearms and other offensive weapons is generally forbidden, but (1) a thing is not an “offensive weapon” if it is not offensive per se and is carried only to frighten; (2) a person does not “have it with him” if he merely snatches it up in the emergency of defence.
The right of defence avails against the police if they act illegally, but the defender cannot take benefit from a mistake as to the law of arrest or self-defence[xxx]. The traditional rule is that even death may be inflicted in defence of the possession of a dwelling.
The occupier of premises may use necessary and reasonable force to defend them against a trespasser, or one reasonably thought to be a trespasser; and it seems that even a licensee (such as a lodger) can eject trespassing strangers. It is a statutory offence to set spring guns or mantraps, except in a dwelling house between sunset and sunrise. It has not been decided whether the exception operates to confer an exemption from the ordinary law of offences against the person. Such defences as spikes and dogs are lawful if reasonable[xxxi]. Guard dogs must, by statute, be kept under full control, except in private houses or on agricultural land.
Thus, we can see the right of private defence is very helpful in giving citizens a weapon which in a case that it’s not misused is subject to certain restrictions, helps them protect their and others’ lives and property.
Edited by Kudrat Agrawal
[xii] scienceblogs.com/deltoid/2000/01/01/selfdefence/ .
[xxi] Criminal Appeal 1057 of 2002 http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-down-guidelines-for-right-of-private-defence-for-citizens/ .
[xxiv] AIR 1980 SC 660.
[xxv] AIR 1924 Pat 789.
[xxvi] AIR 1979 SC 577.
[xxvii] 1967 CrLJ 102 (Pat).
[xxviii] 2002 CrLJ 563(SC).