IPC Section 96 to 106 of the penal code states 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. Section 97 says that the right of private defence is of two types:
(i) Right of private defence of body;
(ii) Right of private defence of property.
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. Consequently this right has been given by the state to every citizen of the country to take law into his own hand for their safety.
LAW REGARDING PRIVATE DEFENCES
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.
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.
IPC SECTION 98. RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A PERSON OF UNSOUND MIND
When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, 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 the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence.
Mr. Z, under the influence of madness, attempts to kill Mr. A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.
A enters by night a house which he is legally entitled to enter Z, in good faith, taking A for a house breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.
This Section lay down that for the purpose of exercising the right of private defence, physical or mental capacity of the person against whom it is exercised is no bar. In other words, the right of private defence of body exists against all attackers, whether with or without mens rea. The above mentioned illustration are pointing a fact that even if an attacker is protected by some exception of law, that does not diminish the danger and risk created from his acts. That is why the right of private defence in such cases also can be exercised, or else it would have been futile and meaningless.
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
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,
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: —
- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
- An assault with the intention of committing rape;
- An assault with the intention of gratifying unnatural lust;
- An assault with the intention of kidnapping or abducting;
- 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.
- 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.
Kamparsare vs Putappa:
Where a boy in a street was raising a cloud of dust and a passer-by therefore chased the boy and beat him, it was held that the passer-by committed no offence. His act was one in exercise of the right of private defence.
Chotelal vs State:
It was constructing a structure on a land subject to dispute between A and B. A was trying to demolish the same. B therefore assaulted A with a lathi. It was held that A was responsible for the crime of waste and B had therefore a right to defend his property.
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.