ANALYSIS ON RIGHT OF PRIVATE DEFENCE UNDER INDIAN PENAL CODE

The state as a policy of law identifies some circumstances which are some extremely compelling circumstances and are not self created rather they arrives out of some external sources and the accused, owing to the external compulsive circumstances acts in a particular manner resulting into the commission of so called offence. The state has a duty to protect its citizens and their property from harm. However, circumstances may arise when the aid of state government is not available on time and there is imminent danger to a person or his property. In such situations, person may have to use force to ward off the immediate threat to his or someone else’s person or property.

Right of Private Defence:

A man is justified in repelling force by force in defence of his person, habitation or property against one who manifestly intends and endeavors by violence or surprise to commit a felony upon either. This right is recognized in every system of law and the extent of the right varies in reverse ratio to the capacity of the state to protect the life and property of the subject. This right is of two kinds: –

1. Right of private defence of body.

2. Right of private defence of property.

Right of Private Defence and Criminal Liability:

  • The right of private defence can be exercised only to repel unlawful aggression and not to retaliate. Sec. 96 of IPC describes that nothing is an offence which is done in the exercise of the right of private defence.[1]
  •  According to Sec. 97 of IPC, every person has a right to defend his own body and the body of any other person, against any offence affecting the human body. The right is extended only to the offence affecting human body prescribed in IPC.
  • The right of private defence commences as soon as a reasonable apprehension of danger continues. The person demanding for the right of private defence must not be an aggressors. This right extends to the protection of own body as well as others body. Indian law is wider than the English law on this point.The right of private defence of body for other person in English law is available only if the other person is his near relative. But no such restriction lies in Indian law. In Indian law, the right of private defence of body for other person extends to the unknown person also. For example: A killed his father when he was trying to cut the throat of A’s mother. In this example since A was protecting the life of his mother, then he has the right of private defence.
  • The right of private defence of body is available against the whole world. Sec. 98 provides that 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.

Exceptions or Limitations to the Right of Private Defence (Sec. 99):

Section 99 lays down the limits within which the right of private defence should be exercised.

1. Acts of Public Servants (Clause 1): There is no right of private defence against an act done sby a public servant if the following conditions are fulfilled:

 (i) Act must be done or attempted to be done by a public servant:

(ii) Act must be done in good faith;

(iii) Act must be done by the public servant under the colour of his office:

(iv) Act must be such as does not cause reasonable apprehension of death or of grievous hurt;

(v) Act may not be strictly justifiable by law;

(vi) There must also be reasonable grounds for believing that the act was done by public servant as such or under his authority.

The principle underlying the above limitation is that normally it is presumed that public servants will always act in strict conformity with the law. Secondly, it is for the good of society that public servants should be protected in the execution of their duty even where they are in error.

2. Acts Done Under the Direction of a Public Servant (clause2):

There is no right of private defence against an act done, by any person under the direction of a public servant if the following conditions are fulfilled:

(1) Act must be done or attempted to be done, by the direction of a public servant.

(2) Act must be done in good faith.

(3) Such puch servant must be acting under the colour of his office.

(4)The act must be such as does not cause reasonable apprehension  of death or of grievous hurt.

(5)The direction may not be strictly justifiable by law.

(6) There must be reasonable grounds for believing  that the acts were done  by the direction of            the public servant or the person acting under the direction  must stat e the authority under which he acts or if he has the authority in writing, he must produce it on demand .

3. Recourse to the Protection of the Public Authorities (clause 3):

According to this clause right of private defence does not exist when the party attacked had an opportunity of calling on the public authorities to intervene. No man has the right to take the law into his own hands for the protection of his person or property if there is a reasonable opportunity of redress by recourse to the public authorities. [2]

4. Excess Harm not Justified (Clause 4):

The quantum of harm caused in self-defence should in no case be in excess of the harm that may be necessary for the purpose of defence. This is so because the right given to a person is the right of defence and not a right to punish the aggressor. Therefore, nothing which is done by way of punishment can be justified.

When the Right of Private Defence of Body Extends to Causing Death (Section 100):

The right of private defence of body extends to the voluntary causing of death or of any others harm to the assailant, if the offence which occasion the exercise of the right be of any of the description hereinafter enumerated,[3] namely:-

First- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly– Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly- An assault with the intention of committing rape;

Fourthly – An assault with the intention of gratifying unnatural lust;

Fifthly- An assault with the intention of kidnapping or abducting;

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

Seventhly- An act of throwing or administering acid or an attempt to throw or administer acid which may reasonable cause the apprehension that grievous hurt will otherwise be the consequence of such act.

Any Harm Others Than Death (Sec. 101):

According to section 101, if the offence be not of any of the descriptions enumerated in Sec. 100, the right of private defence 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 any harms other than death. This right is under the restrictions mentioned in section 99.

Commencement and Continuance of the Right of Private Defence of Body (Sec. 102):

The right of private defence of the body commences as soon as the 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.

Right of Private Defenced Against Deadly Assault (Sec. 106):

If in the exercise of the right of private defence against an assault which reasonably cause the apprehension of death, the defender be so situated that he can not effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of the risk..

Right of Private Defence of Property:

According to Sec. 97, every person has a right to defend 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 tresspass or which is an attempt thereof.

The right of private defence of property extends not only one’s own property, but also the property of others. According to section 98, this right is also available against the person of unsound mind, infants, intoxicated person or the person acting under any misconception.

Exceptions or Limitations to the Right of Private Defence of Property (Sec. 99):

The right of private defence of property is available under restrictions provided in section 99. The right of private defence, in a nut shell, is not available under following conditions:

1. Against the acts of public servants.

2. Against the act done under the direction of public servants.

3. When there is time or opportunity of redress by recourse to the public authorities.

4. Excess harm to the reasonable apprehension, not justified.

When the Right of Private Defence of Property Extends to Causing Death (Sec. 103):

The right of private defence of property extends to voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the description hereinafter enumerated, [4]namely:

1. Robbery,

2. House- breaking by night,

3. Mischief by fire committed on any building, tent vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property.

4. Theft, mischief or house tresspass under such circumstances as may reasonable cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

Any Harm Other than Death (Sec. 104):

According to section 104, if the offence be not of any of the description enumerated in section 105, then this right does not extend to the voluntary causing of death, but does extend to the voluntary causing to the wrongdoer of any harm other than death. In Patil Hari Meghji and another V. State of Gujrat (1983) it was held that where the accused continued to assault the victims after they had fallen down on the ground and were rendered harmless and were not in a position to offer any resistance, the plea of the right of private defence would not be available to him.

Commencement and Continuance of the Right of Private Defence of Property (Sec. 105):

Section 105 provides the rule for commencement and continuance of the right of private defence of property. It lays down that the right of private defence of property commences when reasonable apprehension of danger to the property commences. The right continues:-

(a) against theft 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.

(b) against robbery; as long as the offender cause 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 instant personal restraint continues;

(c) against criminal trespass, or mischief, as long as the offender continues in the commission of criminal trespass or mischief.

(d) against house-breaking by night as long as the house trespass which has been begun by such house-breaking continue.

Conclusion:-

Section 96-106 of the Indian Penal Code, 1860 deals with right of private defence of person and property. The provisions of these sections give authority to the person to use necessary force against wrong-doer in order to protect one’s own body or property. One thing which is to be kept in mind while exercising the right of private defence is that the actions taken by the plaintiff in order to save his/her life from the defended should be reasonable.

Under criminal law, the private of defence plays a very important role. It is good weapon in the hands of the country to defend themselves. This right is not given to take revenge but to protect one’s own body or property against any imminent danger and treat.


[1] State of UP v. Pussu (1885).

[2] Munshi Ram v. Delhi Administration, AIR 1968 SC 702

[3] Arjun v. State of Maharashtra, AIR 2012

[4] Ram Ratan v. State, AIR (1977) SC 619


Author: Asha Kushwaha


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