It is the primary duty of the state to protect its citizens from any harm. But circumstances may arise where the state aid is not available, or the state is not able to lend hands for the protection of an individual against imminent danger or harm. In such a situation, an individual is vested upon with rights by the state to use force to fend-off the immediate threat to his or someone else’s property or person. This right is the right of private defense or self-defense.
Right of Private Defence
The primary rule in criminal law is Self-help. Every country should provide its citizens with the right of private defense to protect his life, liberty, and property. This right also brings with itself numerous restrictions and limitations. Though the right of private defense was granted to the citizens as a weapon for self-defense but is often misused by people for their evil purposes.
In India, Section 96 to 106 of Indian Penal Code, 1860 provides for provisions relating to the right of Private Defence of person and property. This right can only be exercised when recourse to public authorities is not available to a person. One of the main principles on which the right of private defense is based is ‘reasonableness’ of the defense used. The extent to exercise the right of private defense depends on the reasonableness of the apprehension of the danger and not on the extent of actual danger.
Statutory Provision for self-defense in India
Section 96 of Indian Penal Code
This section talks about the things done in private defense and explains that nothing is an offense which is done in the exercise of the right of private defense.
Right of private defense is not an offense, and in fact, it is an act done in defense. The right of self-defense 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 defense. The burden of proof is upon the person who pleads for the right of private defense.
Consequently, this right cannot be allowed to be used as a shield to justify an act. A very careful weighing of the facts and circumstances of each case is required to decide as to whether the accused had, in fact, acted under this right. There is no place for assumptions on the part of the accused while exercising this right. There must be a reasonable apprehension about the possibility of an attack to exercise the right of private defense.
Section 97 of Indian Penal Code
Section 97 talks about the Right of private defense of the body and of Property. Each individual has a right to defend himself, i.e., his body or the body of any other person. Similarly, he has the right to protect his property or else’s property, whether movable or immovable against an act which amounts to an offense of theft, robbery, mischief, or criminal trespass.
There must be an offense committed or attempted to be committed against a person who wants to invoke the plea of right of private defense. An injury caused to a man in question is not considered necessary for deciding the question of the accrual of the right of the private defense. Reasonable apprehension of causing grievous injury is absolutely enough to exercise the right of private defense.
Section 98 of Indian Penal Code
This section talks about Right of private defense against the act of a person of unsound mind, etc. The right of private defense also exists in cases which would not result into an offense due to the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act, or by reason of any misconception on behalf of the person. Every person has the same right to private defense against the act which he would have if the act was an offense.
Section 99 of Indian Penal Code
Section 99 limits the exercise of the right of private defense. It lays down the various conditions under which the right of private defense has to be exercised or invoked.
The first three clauses of section 99 provide that this right cannot be invoked when:
- a public servant acting in good faith exercises his legal duty not giving rise to a reasonable apprehension of death or grievous hurt,
- any person acting the direction of a public servant in good faith exercises his legal duty not giving rise to a reasonable apprehension of death or grievous hurt,
- reasonable time exists to resort help of public authorities.
- There must be reasonable grounds to b believe that the act done was done by a person under public authority.
Section 100 of Indian Penal Code
Sec 100 specifies seven situations in the exercise of the right to private defense of the body extend to causing death. The right of private defense of the body extends to the voluntary causing of death or of any other harm to the assailant if the offense is of nature herein described:
- Such an assault may reasonably cause the apprehension of death
- Such an assault may reasonably cause the apprehension of grievous hurt
- An assault with the intention of committing rape
- An assault with the intention of gratifying unnatural lust
- Assault having the intention of abducting or kidnapping
- An assault with the intention of wrongfully confining a person which may reasonably cause him to apprehend that he will not be able to take protection from public authorities for his release.
- An act or attempt to throw acid
Section 101 of Indian Penal Code
This section prescribes for when the right of self-defense extends to causing any harm other than death. If the offense is not of the nature mentioned in the above section, the right of private defense of the body does not extend to the voluntary causing of death to the assailant but does extend, to the voluntary causing to the assailant of any harm other than death.
Section 102 of Indian Penal Code
Section 102 deals with Commencement and continuance of the right of private defense of the body. As soon as a reasonable apprehension of danger arises to the body from an attempt or threat to commit the offense even though the offense may not have been committed, the right of private defense commences. And it continues as long as the apprehension of danger to the body continues. This apprehension should be real and reasonable.
In Kala Singh case, the deceased was a strong man of a dangerous character. Previously in a fight with the accused, he threw the accused on the ground, pressed him hard and bit him. The accused took up a light hatchet and gave three blows of the same on the brute’s head. The deceased died after three days of this fight. It was held that the circumstances raised a strong apprehension of danger in the mind of the accused that he would be killed otherwise. This apprehension was real and reasonable and not timid and fancy, and so his exercise of the right of private defense is justified.
Section 103 of Indian Penal Code
This section provides for when the right of private defense of property extends to causing death. Whereas sec 100 provides for the exercise of the right of private defense of the body extends to causing death. The right of private defence of the property also extends to death when voluntarily caused or if any harm is caused in the form of an offense. Provided such an offense is in the form of the following descriptions, namely:
- House-breaking by night
- Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property
- Theft, mischief, or house-trespass
Section 104 of Indian Penal Code
It says that if the committing or attempting to commit any offense leads to the exercise of the right of self-defense, then such a right does not extend to the voluntary causing of death but extends to the voluntary causing to the wrongdoer of any harm other than death. Provided that the offense is not of any other nature as described in the previous section.
Section 105 of Indian Penal Code
Section 105 prescribes the commencement and continuance of the right of private defense of property. The commencement of the right of private defense of property takes place when a reasonable apprehension of danger to the property takes place. Continuation of this right against theft takes place until the offender affects his retreat with the property or the property has been recovered. Continuation of the right of private defense against robbery continues as long as the offender causes or attempts to cause to any person death or hurt.
Section 106 of Indian Penal Code Right
This section mentions that private defense against deadly assault when there is a risk of harm to an innocent person. If in the exercise of the right of private defense by a person against an assault causes reasonable apprehension of death, the defender so situated, cannot effectually exercise the right of private defense without risk of harm to an innocent person his right or private defense extends to the running of that risk.
The obstacle is the doubt which exists in the mind of the defender if he is entitled to exercise his right even when there is a possibility of some innocent persons being harmed by his actions. According to this Section, in case of an assault which causes a reasonable apprehension of death, if the defender is facing a situation where there exists a risk of harm to an innocent person, there is no restriction on him to exercise his right of defense, and thus he is entitled to run that risk.
The right of private defense is a weapon to the citizens of India for their self-defense but is often used by many people for evil purposes or unlawful purposes. It is the court’s duty to make sure if the right was exercised in good faith or not.
The extent to avail the right of private defense depends on the real apprehension of danger and not on actual danger. This right can be extended only in some situations to a certain degree. The amount of force to be used should only be the amount necessary to counter the attack.