Self help is the first rule of criminal law. The India penal code has given the right of private defence of body and property to every individual. Section 96 to 106 states the law relating to the right of private defence of person and property.

Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence. The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend.

In the word of Bentham “The right of private defence is necessary for the protection of life and liberty and property. ”

The law of private defence is based on two different principles

1- Everyone has the right to private defence of his own body and property and another body and property.

2-The right of private defence is not applicable to those cases where the accused himself is an aggressive party.

It is primary duty of the State to protect life and property of citizens. But the fact is that State  cannot watch each and every activity of the citizens. There may be situations in which the State cannot help person immediately when his life or property is in danger.  In view of this Indian Penal Code has given the right of private defence of body and property of every individual.

The right of private defence has to be exercised directly in proportion to the extent of aggression. There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact.

In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea. Certain factors need to be kept in mind in considering the act of private defence:

1. If there was sufficient time for recourse to public authorities or not
2. If the harm caused was more than what was necessary to be caused or not
3. If there was a necessity to take such action or not
4. If the accused person was the aggressor or not
5. If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property.

Nature of Right of Private Defence

In Shankar Balu Patil v. State of Maharashtra 2007 (5) MhLj 663 hon’ble Supreme Court stated that right to private defence is purely preventive and not offensive, retributive or punitive. The right is a right of ward of danger must not be illusory but must be so imminent, potent and real that it cannot be averted otherwise than by a counter attack. The rule is quite clear on the point that it has to be established that the accused person were under such grave apprehension about the safety of their lives and property that retaliation done to the extent done was absolutely necessary. The Court has made it clear that Section 97 of IPC recognizes the right of person not only to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.

When Private Defence Extends to Cause Death

It is a rule that a person exercising the right of private defence is allowed to inflict reasonable harm to protect body or property. But there are certain occasions when this right extends to causing of death. They are:

• In the case of Body (Sec 100 IPC)
• In the case of Property (Sec 103 IPC)

The right of self-defence to cause death and the doctrine of necessity

The doctrine of necessity states that if an act is an offence, it will not be considered as one if the following conditions are satisfied :

1. The act was done to avoid other harm which could not be avoided otherwise. If that situation was not avoided, it would have inflicted upon him or another person’s body or property, inevitable and irreparable evil.
2. The force inflicted was reasonable as per the necessity
3. The evil inflicted was proportionate to the evil avoided

As stated in KENNY on Outlines of Criminal, where the man has inflicted harm upon others person or property for the purpose of saving himself or others from greater harm, he is saved under this defence. One person, in private defence can kill any number of aggressors to protect himself alone. private defence overlaps the doctrine of necessity. Unlike necessity, the private defence does not.

What is the extent of private defence against body in a situation which is not mentioned in the seven categories of Section 100? If there is any situation which is not mentioned in Section 100, the person cannot exercise his right of private defence against the body to cause death of any person. He can only exercise the right to the extent of causing any other harm or injury except death. In the case of Mahinder Pal, when small mischief was committed in the factory by the workers, the owner was not justified in doing his act when he shot dead one of the workers.

What are the Exceptions to the rule of private defence? (Section 99) :

Act of a public servant or under the direction of a public servant:

A person cannot exercise his right of private defence if the following conditions are satisfied:

 There was no fear of death or grievous hurt

 The act was done or attempted to be done by a public servant or under the direction of public servant

 The public servant was acting in good faith

 The public servant was under colour of his office

 It does not matter if the act or direction was justified by law or not.

Section 99 specifically says that there is no right of private defence against an act which does not cause reasonable apprehension of death or grievous hurt, if done or attempted to be done on the direction of a public servant acting under good faith under the colour of his office. The protection extents to acts which are not even justified by law .

However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent.

However, there is a difference between acts which are not strictly justified by law and acts which are wholly illegal. If a public servant acts without jurisdiction, it cannot be said that he acted in good faith and his act should be protected even if it is not justified by law. The law does not protect illegal acts and the acts committed by officers without jurisdiction. ‘Act not justified by law does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly applied but not in cases where jurisdiction is absent.

When a person has time to recourse:

If a person has reasonable time to have recourse to the protection of the public authorities; he has no right to use its private defence. For example, if a person is threatened that he will be killed after three days, he has sufficient time to inform the police. If in case he waits for the person who threatened him and shot him dead. He cannot say that he was using his right of private defence.

A per the Supreme Court of India, when a person has time to get recourse and there is no need to take law in hands, right of private defence cannot be exercised.

This does not mean that a person must run away to have recourse of the public authorities when he is attacked instead of defending himself .

In the case of Jai Dev v. state of Punjab,(AIR 1963 SC 612 the Supreme court said that “In a civilized society, the state is assumed to take care of person and properties of Individual. This, however, does not mean that if a person suddenly faces an assault, he must run away and protect himself. He is entitled to resist the attack and defend himself.”

The law of private defence itself states that there is no right of private defence available unless the situation was so urgent that there was no time to have recourse to the protection of public authorities. The urgency of the situation must naturally depend upon several facts and circumstances. These circumstances may include:

1. Immediate danger to person or property that if it is not immediately protected, would be lost by the time the protection from public servants is obtained.
2. Reasonable apprehension of the danger to person or property arises out of committed, attempted or threatened crime. The act was going to affect person and property and justifies the particular injury inflicted.
3. When the act of private defence extends to inflicting of more harm than it is necessary to inflict for the purpose of defence
4. The right of private defence is restricted to not inflicting more harm than necessary for the purpose of defence. To determine the amount of force which was necessary to be inflicted, the facts and circumstances are needed to be considered. There is no protection available in case the harm is inflicted unnecessarily and is much extended than what was reasonable.

For instance, if a person is going to slap you, you cannot shoot the person with a gun in self- defence.

There have been instances where the force inflicted was more than necessary. Some of them are:

1. A person killed old woman found stealing at night.
2. A person caught a thief at night and deliberately killed him with a pick-axe.
3. A thief was caught committing housebreaking and was subjected to gross maltreatment
4. The right of private defence arises when an aggressor has struck or a reasonable apprehension of a grievous hurt arises depending upon the facts of each case. But such a right in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence

Right to private defence of body up to causing death

Section 100 of IPC specifies six situations in which the right of private defence of body extends even to causing death.

Section 100 – The right of private defence of the body extends under the restrictions mentioned in section 99, 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 here in after enumerated, namely –

First – such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault.

Second – such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.

Third – An assault with the intention of committing rape.

Fourth – An assault with the intention of gratifying unnatural lust.

Fifth – As assault with the intention of kidnapping or abducting.

Sixth – An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.

Even though this section authorizes a person to cause death of another in certain situation, it is also subject to the same restrictions as given in section 99. Thus, a person cannot apply more force than necessary and must contact the authorities if there is an opportunity.

Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life Yogendra Morarji vs State of Gujarat 1980 is an important case in which SC observed that when life to use and summarized the law of private defence of body as under –

There is no right of private defence against an act which is not in itself an offence under this

Section 101: When such rights extend 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.

Case law for Section 101

In Dharmindar v. State of Himachal Pradesh, that onus of proof to establish the right of private defence is not as onerous as that of a prosecution to prove its case. Where the facts and circumstances lead to a preponderance of probabilities in favor of the defence case it would be enough to discharge the burden to prove the case of self-defence.

Section 102: Commencement and continuance 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; it continues as long as such apprehension of danger to the body continues.1

• Example: A, B, and C were chasing D to kill him in order to take revenge, but suddenly they saw a policeman coming from another side. They got afraid and turned back to run. But D shoots B in his leg, even when there was no imminent danger of harm. D will be liable as there was no apprehension of death or risk of danger.

Section 103: When the right of private defence of property extends to causing death.

1. Robbery;
2. House-breaking by night;
3. Mischief by fire committed on any building, tent or vessel, building, tent or vessel used as a human dwelling, or a place for the custody of property;
4. 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.

• Example: C Attempts to stab D maliciously while committing burglary in D’s house. There is a reasonable apprehension in the mind of D that C will hurt him grievously, so in order to save himself and property, C throttled D with a knife in his chest, causing Death. C will not be liable.

Case law for Section 103

In Mohinder Pal Jolly v. State, the deceased worker and some of his colleagues were shouting slogans for demands outside the factory. Some brickbats were also thrown by them which damaged the property of the owner who fired two shots from outside his office room, one of which killed the deceased worker. The court held that it was a case of mischief and the accused will not get the defence of this section.

Section 104: When such right extends to causing 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 wrong-doer of any harm other than death.

• Example: If A has committed criminal trespass in order to annoy B or hurt him, then B will have the right to harm A in proportional manner, not causing death of the person.

Case law for Section 104

In VC Cheriyan vs. State, the three deceased along with other persons had illegally laid a road through private property of the church. A criminal case was pending against them. The three accused belonging to church put up barricades across this road. The deceased was stabbed by accused and Kerela HC held that private defence does not extend to causing the death of a person in this case.

Section 105: Commencement and continuance of the right of private defence of property.

The right of private defence of the property commences when:

• A reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues until the offender has effected his retreat with the property
• Or, either the assistance of the public authorities is obtained,
• Or, the property has been recovered.
• 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
• As long as the fear of instant death or
• 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.

• Example: Suppose a thief into the house of an individual, and attempts to hurt him instantly with a knife, then that individual has the right to act in private defence and harm that thief to save life and property.

Case law for Section 105

In Nga Pu Ke v. Emp, paddy sheaves belonging to the accused were removed illegally by a person. Accused attacked the cartmen and that cartmen jumped off the carts and ran away leaving sheaves. The accused still chased him and attacked him leading to death. The court held him as guilty of offence

Section 105: Commencement and continuance of right to private defence to property

To what extends this right is justified depends not on actual danger but on whether there was reasonable apprehension of such danger and when the same is commenced.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

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 or 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.

Section 106: Right to private defence against a deadly assault.

This section provides for the risk a person may have to run in order to defend himself against a deadly assault reasonably causing 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 of private defence extends to the running of that risk.

• Example: C is attacked by a mob who attempts to murder him. He cannot exercise his right to private defence without firing on the mob. In order to save himself, he is compelled to hurt innocent children while firing so C committed no offence as he exercised his right.

Conclusion

Right of private defence is a good weapon in the hand of every citizen to defend himself. This right is not of revenge but toward the threat and imminent danger of an attack. But people can also like misuse this right. Its very difficult for court to find out whether this right had been exercised in good faith or not. So these were the general exceptions which are available to the accused to escape liability or save himself from the offence committed. It may extend to even causing the death of a person or harm an innocent person too depending upon the circumstances. The accused should also have the right to be heard, keeping in view the democratic character of our nation. That’s why these exceptions are provided so as to represent oneself in the court of law.