Search
  • Legis Scriptor

Commencement and continuance of RPD : Judicial Interpretation


Authored by : Anjali Chaudhary


Keywords

Restrictions; Defence; Necessary force; Right; Property; Judicial interpretation; Apprehension


Abstract

The Right to Private defense is based on the proposition that it is the primary duty of a man to protect himself. India follows the system of Rule of Law, but this is a provision that allows a man to take the law into his own hands for the safety of himself and property. It also enables a man to protect someone else's life and property if there is a reasonable apprehension of danger. This article explains in detail what the Right to Private defense is and it states its importance. It also seeks to explore the rationale illustrated by the judiciary while interpreting the provisions related to this law.


Introduction

The elementary commitment of a man is to help himself. To protect one's own body and the property is considered to be no crime. Principally, the state holds the responsibility to protect the life and liberty of its citizens but there may occur a situation where the individual would need to take accountability for this well-being. This is where the Right to Private Defence comes in. It is a right that provides the power to an individual to use force against another person in order to protect himself or his property, or someone else and someone else's property.[1] But this right is subject to some limitations and is not available in the entirety of the state of affairs.

This provision finds its place in the Indian Penal Code, 1872 from section 96 to section 106. These sections bestow upon an individual to use necessary force against the assailant in the cases where the state-facilitated arrangement is not accessible at the very outset. The phrase 'private-defense' has not been defined in the IPC, leading towards the requisite for the judiciary to decipher it.

The concept and its Judicial interpretation:-

As the name suggests, this right meticulously falls under the category of Defense and not offense. The Indian Penal code provides for section advocating this right and the judiciary has interpreted these provisions from time to time.

The Right to exercise Private Defense:-

The inception of this right was done to provide the citizens with the alternative to use force against the offenders to save themselves. This provision is provided under Section 96 of the IPC which states that Nothing is an offense, which is done in the exercise of the right of private defense. According to this section, a person cannot be held liable for inflicting force on another person if the former confronts the act for the reason of immediate imperative for preventing danger owing to external reasons. It is to be noted that this right is not available in the instance of a free-fight.[2] If both the parties have voluntarily entered into a fight being aware of the ramifications, they do not have the right to protect themselves under this provision of law.

The Right to protect his body, property, other person's body and property:-

This Right is provided under Section 97 of the IPC. This provision reads as:-

1. His own body, and the body of any other person, against any offense affecting the human body;

2. The property, whether movable or immovable, of himself or any other person, against any act which is an offense falling under the definition of Theft, Robbery, Mischief or Criminal Trespass, or which ` is an Attempt to commit Theft, Robbery, Mischief or Criminal Trespass.

Though this right allows a person to defend his body and property as well as the body and property of someone else, section 99 of the imposes restrictions on the scope of this provision. It states that the offender is not allowed to avail of this right himself. Otherwise stated, the person against whom the Right of Private Defense is being used, is not allowed to use this Right himself.

The right to protect the property is not only available when the danger to the property hatches. One can exercise this right also when there is a reasonable suspicion that such danger can arise. This is provided under Section 105 of the code.

Circumstances under which the Right to Private Defense could be used:-

This resort is prescribed under Section 100 of the IPC. This section provides for six circumstances under which a person is allowed to avail of the Right to Private defense.

1. The assault should cause a reasonable apprehension of death.

2. The assault should cause a reasonable apprehension of grievous hurt

3. The assault with an intention to commit rape

4. The assault with an intention to satiate unnatural lust

5. The assault causing reasonable apprehension of kidnapping or abduction

6. The assault causing reasonable apprehension of wrongful confinement.

These provisions are not absolute in nature and are subject to reasonable restrictions under Section 99 of the code.

Right to cause any kind of harm which shouldn't result in death:-

Article 101 provides for the provision that Private defense must be made use of in a way where a person can defend himself against the acts of the offender but he is not allowed to cause the death of the latter. This is based upon the principle of proportionality by the virtue of which, the force applied during exercising Private defense must be proportional to the apprehension of the harm. A person cannot use force that is unnecessary and avail this right to escape the liability.

Right to cause death while exercising Private defense:-

A person is authorized by the law to cause death or harm the antagonist if the former is under a reasonable impression that his property is in danger. This right is given to him under Section 103 of the IPC, subject to restrictions under Section 99 of the code.

The code provides for provisions where a person can use the Right of Private defense not only against an aggressor who is capable to commit a crime according to the law but also against an offender who isn't legally capable of committing a crime, e.g., a person of unsound mind, a lunatic or a person who is involuntarily intoxicated. Furthermore, a person who is incapable of committing a crime according to the law could be made subject to the infliction of force by another person who is exercising his Right of Private Defense having reasonable cause according to section 98 of the code.

Conclusion

The Right to Private Defense is a right available to every person in the country which allows him to defend himself by using force against the offender. These authorities provide the rights but this law is also applicable to the authorities. A citizen is entitled to use these rights against a police officer who tries to act beyond the power conferred upon him by the virtue of his position. So, this right could also be misused in a myriad of cases which makes it laborious for the courts to decide if it was practiced in good faith or not.

References

- Jaspreet Kaur Kohli, Self Defence Laws in India < https://legodesk.com/legopedia/right-of-private-defence/> accessed 04-Aug-2020

- Private Defence : A right available to all people in India < http://www.legalserviceindia.com/article/l470-Private-Defence.html> accessed 05-Ag-2020

- Legal provisions relating to the Right of Private Defense in India < https://shodhganga.inflibnet.ac.in/bitstream/10603/218741/13/13_chapter%209.pdf> accessed 05-Aug-2020

- Legal provisions related to Right of Private Defence in India, <https://shodhganga.inflibnet.ac.in/bitstream/10603/218741/13/13_chapter%209.pdf> accessed 05-Aug-2020


Foot Notes:-

[1] Mano Dutt v. the State of UP, (2012) 4 SCC 1983 [2] Onkarnath Singh v/s. State of U.P. 1974 Cr LJ1015; AIR1974 SC1550;

CONTACT US

Website:-          www.Legisscriptor.com

E-mail:-            Info.legisscriptor@gmail.com

For Internship:- Legisscriptor.internship@gmail.com

Contact info:-    8851264387 (WhatsApp Only)

© 2020 by Legis Scriptor. 

  • LinkedIn
  • Instagram