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Self Defence as a Defence


Authored by - Prachi Ganeriwala

Keywords - Extent, good faith, imminent, extent, reasonable apprehension, unlawful.


Abstract


Self-defence can be explicated as the right to avert suffering force or violence through the use of a sufficient level of equilibrating force or violence. Self-defence or Private defence is a right available to every citizen to defend themselves from any external force that can elicit harm or injury. In layman terms, it implies the utilization of otherwise unlawful actions to safeguard oneself or any other individual, to protect the property or to prevent any other crime from any imminent danger at the time when the State aid is unavailable.


Introduction


The provisions relating self-defence are envisaged in Sections 96 to 106 of Indian Penal Code 1860. This right can only be exercised in case of overhanging danger paralleled with the absence of State aid. The term private defence is not properly defined anywhere in Penal Code; hence, this right has evolved with time through amendments and case jurisprudence. One of the most important principles of private defence is the ‘reasonableness’ of the defence used.


In most common parlance, it implies the use of otherwise unlawful actions to protect oneself or any other individual, to protect the property or to prevent any other crime. Article 51(a)(i) of the Indian Constitution imposes a fundamental duty on the State to protect public property and abnegate violence. It is the fundamental duty of the State to protect its citizens and their property, from any harm, and in event of unavailability of State aid and coupled with unavoidable danger, the person is authorized to use his force to protect himself from any injury. Consequently, it has given this power to the citizens itself. They are authorized by the State to take the law in their own hands in the matter of their self-defence. It is to be noted that the right of private defence can only be exercised if aid from the State is not available. Any unlawful Act committed by any person in course of self-defence is not considered as an offence and therefore, does not give rise to any right of private defence. The right is not dependent on the actual criminality of the person resisted but depends solely on the wrongful character of the act attempted, in case of real and reasonable apprehension, irrespective of the fact that it is mistaken.

Scope


Section 96 of the Code States that the right of private defence cannot be constituted as an offence in return. The right of self-defence under Section 96 is not absolute but subject to Section 99 which asseverates that the right does not protect immunity in case of infliction of more than necessary harm than for defence.


Section 97 of IPC limits exertion of the right of private defence to the extent of absolute necessity which shall in no case exceed more than the necessary force required for defending aggression. Further, there must be a reasonable apprehension of danger.

In the case of Parichhat vs State of M.P[1], aftera lathi blow on the father’s head, the accused, his son, gave a blow with a Ballam on the chest of the deceased. The Court decided that the accused had exceeded his right to private defence.


Section 98 of IPC lays down that the physical or mental capacity of the person against whom it is exercised does not hinder the right for exercising the private defence. That is to say, the right of private defence of body exists against all attackers, irrespective of the presence or absence of mens rea.


Section 99 incorporates the conditions and limits within which the right of private defence can be exercised. The Section provides an offensive right instead of a defensive right. The first two clauses provide that the right of private defence cannot be invoked against a public servant (subject to certain restrictions) or a person acting in a bonafide manner, in the exercise of his legal duty provided that the said act is not illegal per se. Similarly, clause three restricts the right of private defence, if there is time to seek recourse from public authorities, this Section shall not reply. Further, the right must be exercised in proportion to harm inflicted.


Section 100 proffers the extension of the right of self-defence of the body to the voluntary causing of death, or other harm to the assailant, subject to the certain restrictions mentioned within the aforementioned Section, if the offence which triggers the exercise of the right is of any six descriptions enumerated therein.


According to Section 101, if the offence does not belong to any descriptions enumerated within the last preceding Section, the right of private defence of the body does not extend to the voluntary causing of death to the assaulter but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing of any harm apart from death. In Mohinder Pal Jolly v. State of Punjab[2], where the factory owner caused the death of a worker by a shot from his revolver, it was held that this Section did not protect him as there was no apprehension of death or grievous hurt.


Section 102 avers that 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 and impending. For example, one cannot shoot their enemy from a long distance, even if he is armed with a dangerous weapon, primarily because he has not attacked yet and therefore, reasonable apprehension of attack is lacking.


Section 103 relates exclusively to the defence of property and provides the right of private defence to the property and justifies homicide in case of robbery, housebreaking by night, arson and the theft, mischief or house-trespass which case apprehension of grievous harm. This provision has similarity with Section 100 of the Act which deals with the same problem but in the context of the defence of the body. One of the leading cases, Munshi Ram v Delhi Administration[3], the Supreme Court ruled that this right exists even against true owner provided the trespasser has settled possession over the property.


According to Section 104 of the Code, if the committing or attempt to commit of an offence, occasions the exercise of the right of private defence, of any of the description not enumerated in the last preceding Section, that right does not extend to the voluntary causing of death but only extends to voluntary causing any harm except death to the wrongdoer, subject to the restrictions mentioned in Section 99 of the Act.


As per Section 105, the right of private defence of property commences on a reasonable apprehension of danger to the property. This right can be exercised if only there is no time to have received the expedient remedy from the public authorities.


Section 106 of Indian Penal Code states that in case of an assault, which reasonably causes the apprehension of death, there is no restriction on a person to exercise his right of defence. This Section removes an impediment regarding the doubt of the defender as to regarding his entitlement to exercise his right of self-defence on the possibility of some innocent being harmed by his actions.

Conclusion


Though the aim behind providing the right of private defence to citizens of India was to provide them with a contrivance for their self-defence, it is often misused by people with malafide intentions. Therefore, the court has to infer whether or not the right was exercised in good faith. There are several important points that the court takes into consideration while making its decision, like the extent of injury caused, availability of State aid, accession of a threat to his safety. Also, the Indian Penal Code does not appropriately define this right and it has evolved over the years with judgments and decisions of the Courts in various landmark cases. But it is also argued that the Section does not need any further clarification than has already been done by the courts. It was the foresight of the legislature to grant such wide discretion to the courts that they may cover within their ambit, the entire gamut of situations which might arise and not end as a travesty of justice. The right of private defence is available when one is suddenly accosted with imminent danger and it commences and sustains on the instant emergence of reasonable apprehension. The right can be extended by an accused in some circumstances subject a certain degree, that would not invalidate the right of private defence.

Endnotes


[1] AIR 1972 SC 535, 1972 Cr LJ 322, (1972) 4 SCC 694

[2] 1979 AIR 577, 1979 SCR (2) 805

[3] 1968 AIR 702, 1968 SCR (2) 408

References


1.https://indiankanoon.org/doc/153251/

2.https://lawrato.com/indian-kanoon/ipc/section-105

3.http://www.legalserviceindia.com/article/l470-Private-Defence.html#:~:text=IPC%20Section%2096%20to%20106,defence%20of%20person%20and%20property.&text=Body%20may%20be%20one's%20own,first%20rule%20of%20criminal%20law.

4. Gaur, k. D, Indian Penal Code, 3RD Edition, Universal Law Publishing Co., Delhi, 2008.

5. Gandhi, B. M, Indian Penal Code, 2ND Edition, Eastern Book Company, Lucknow, 2006.

6. Tandon, Mahesh Prasad, Indian Penal Code, Allahabad Law Agency, Faridabad, 2006.