Applicability of right to private defence

This Paper is written by Harasees Kaur, a BA LLB (Hons.) 3rd-year student from Lovely Professional University.

Abstract

The first obligation of every human being is to help themselves. That’s why every citizen of every free country should have the right to protect themselves. This right is recognized in every legal system, and it varies depending on how much the state can do to protect its citizens. The main goal of the state is to protect its citizens, but no state, no matter how big or small it is, can afford to have a cop to stop every crime in the country. That’s why the state has given every citizen the right to take the law into their own hands for their own safety, but it’s important to remember that there’s no right to private defence when there’s not enough time for the police to know about the crime. The law doesn’t depend on the actual crime of the person being defended. It only depends on the illegal or “potentially illegal” nature of the attempt or wrong act. If the fear is real and reasonable, it doesn’t matter if it’s illegal. The act of exercising this right isn’t a crime and therefore doesn’t give rise to a private defence in return. The aim of this research is to know whether the right of private defence is an innovation of the Indian legislature or an established practice. What is the scope and circumstances for the exercise of right of private defence (Sections 96-106)? What are the results of the application with regard to the Indian legal system (judgements passed)? Is all prima facie evidence excusable under these sections?

Introduction

In a civilised society, it is the responsibility of the state to protect the life and liberty of each of its members. In Munney Khan v State[1], the Supreme Court noted that the right to private defence “is codified in sections [96-106] of [I.P.C.], which must be read in conjunction to have a proper understanding of the scope and limits of that right. By introducing those sections into force, the writers of the code sought to exclude from the criminal article actions taken in good faith to suppress unlawful aggression.” The fundamental principle underlying the right to private defence’s is that in the event of danger and fear of causing harm, the accused does not have to wait for assistance from the government or public authorities, but may take reprisals, but in a proportionate manner.[2]

Under this code, self-defence takes on extra meaning and is held to the highest standard. Parke said, “Nature has bestowed upon us the act of reflex, which compels a man to turn back, and the law compels him to do so.”[3]

The force to be used for reflex must and should be proportional to the force faced. So, what you need to understand is that a man must go back to protect his life and the lives and belongings of others, using a force equal to the force being used against him. This right to self-defence must be taught to every citizen when there is no immediate help or protection from the state or the public.

Research Objective

The objective and scope of this project is on the “Right to Private Defense”. This will define the various forms of private defense available to individuals under the Indian criminal justice system, specifically under the Indian penal code (IPC). The project will include definitions and explanations of the various forms of protection available under sections 96- 106 of the IPC. These definitions and explanations will be backed up by statements made by various lawyers/judges in extracts from cases where these sections, “Private defense”, are applicable under IPC Chapter IV.

The emphasis will be on determining the need for codification of these sections and the extent to which they are applicable; enacting the sections that the writers of the code intended to exclude from the operation of the penal provisions of the IPC, actions done in good faith to prevent unlawful aggression.[4]

Research Methodology

In order to determine whether there’s a right to a private defense, you’ll need to thoroughly analyse the whole incident and evaluate it in the appropriate context.

The approach is doctrinal, with the aim of applying the principles of different forms of protection of rights and justifying the appropriate applications by examining the case, determining whether, in a specific set of circumstances, the individual acted justifiably when exercising that right, knowing the facts and circumstances surrounding each of those rights.

Literature Review

The fundamental ideas included in this essay were primarily taken from textbooks, research papers, blogs, etc., and similar assertions that were supported by long-standing judicial precedents.

Additionally, whilst this effort was being undertaken, several concepts from various philosophers were observed and respectfully incorporated into the writing of this article.

The following textbooks, research papers, and blogs served as the basis for the written assignment:

• All Indians Have the Right to Private Defence, according to Mohi Kumari, a second-year LL.M. student.

Law School of Rajiv Gandhi National University.

Every citizen has a useful tool in the form of the right to self-defence. This right is in response to the threat and imminence of an attack, not as an act of retaliation. However, individuals may abuse this right. The obstacle is the defender’s uncertainty about whether he is allowed to exercise his right, even though there is a chance that some innocent people will be damaged by his act. It is quite challenging for the court to determine whether this right was used in good faith or not.

• IPC-Blog iPleaders:

Private Defence The right to self-defense, which was given to Indian citizens as a tool for self-defense, is frequently abused by a large number of persons for immoral or illegal ends.

The following significant factors will be taken into account by the court when formulating its decision:

1. Damages brought on by the accused
2. Damages incurred by the defendant
3. Whether the accused had enough time to call the authorities (whether the state aid was available)
4. An increase in the danger to his safety

Additionally, the Indian Penal Code misinterprets this right, which has developed over time the years with court rulings and verdicts in a number of significant cases as in the case of Munshi Ram and others versus the Delhi Administration, Ram Swarup v. U.P., among other cases.

• A Legal Analysis Of A Study On Private Defence In India

In accordance with A.Gowtham and K. Roja, if the defender is in a position that prevents him from effectively exercising his right to private defence against an assault that reasonably raises the possibility of death, his right to private defence extends to taking that risk. Every citizen has a useful tool in the form of the right to self-defence. This right is inadmissible. Finding out whether this right has been exercised in good faith or not is exceedingly difficult for the court to do of retaliation but rather towards the potential risk and impending attack. However, some individuals might abuse this.

• Right to Independent Defence Chanakya National Law University, Patna, Simran

There may be situations where a person or his property is in immediate danger but the assistance of governmental machinery is not accessible. A person is permitted to use force in these circumstances in order to dissuade the immediate threat to his or another person’s person or property. This is the private defensive right. The purpose of this right is to enable the people to defend themselves and their property without holding back out of concern for legal repercussions. In rare cases, the right even allows for killing the person who poses the threat. However, such a privilege is not always available and is subject to various limitations.

It is only permitted where there is an immediate threat to human life or property and the accused is not the aggressor. Against public employees operating within the scope of their legal authority, the right of private defence is not accessible. A person is only permitted to use force that is appropriate to the threat at hand and that is reasonable. The rule is best stated in the negative form, meaning that the force used in defence must not be such that a reasonable man would have regarded it as being out of all proportion to the danger. The force used in defence must also be reasonable, that is, proportionate to the harm threatened.

• Nandharagh P.H.’s study on the right to private defence

In the past, the idea of a right to private defence was prevalent in western nations during an era of absolute liability, when killing was viewed as a crime. Every person has the right to self-defense in this country, and that right is the right to private defence. But this right to employ the defences under sections 96 to 106 also comes with some limitations. But it is not retaliation; rather, it is in response to the threat and imminence of an attack. But people can abuse the right as well. Trying to determine whether an act was performed with good or evil purpose is the state’s main challenge. In every state in the United States, an individual has the right to self-defense when there is an immediate risk of bodily injury. The amount of force utilised must correspond to the amount of force being used against someone’s safety.An individual is generally permitted to take any defensive or evasive actions they deem reasonable under the circumstances in Australia. Self-defense law is not formulaic, in contrast to much of the common law, and instead takes into account the particulars of each case. Determining whether the right had been exercised in good faith or not is exceedingly difficult for the court to do. But for the general populace, the ability to safeguard one’s own body or property.

Scope And Applicability of Right To Private Defence

It is required to carefully review the entire incident and take it into account in its totality and within its proper context in order to determine whether the accused is entitled to the right to privacy. When requesting private defence, one must take into account the defendant’s injuries, the immediate danger to his safety, the severity of those injuries, and the circumstances surrounding the defendant’s application to the government.

It should be highlighted that only those who are unexpectedly faced with an adverse hazard that was not caused by themself are entitled to private defence.

Laxman v. State of Orissa[5] further stated, “Necessity must be present, real, and apparent.”

The following principles form the foundation of the right to private defence:

• The state is required to protect citizens from unauthorised intrusions on their person and property;
• If assistance cannot be obtained, one should always turn to someone who is in danger and is capable of taking action on their own behalf;
• Violence must be strictly proportionate to the harm to be avoided and must not be used to exact revenge or satisfy malice towards the aggressor.

In no way could the counterattack be construed as an attack made in exercise of a private defensive right.[6] Harm cannot be stopped or reacted against, as the right to private defence is preventative rather than punitive. Free fights are likewise excluded from the rules of sections 96–106 since they are fights in which both parties wish to engage in combat from the outset.

The origin of the right to private defence and its applicability

According to Lord Macaulay, the code’s author, Chapter IV of the Indian Penal Code, which deals with the right to private defence, “this is an attempt to define the limits of the right to private protection.” The concept of self-defense against damage brought on by another person is the foundation of the right to private defence under section 96-106 of the IPC. The sensible citizen has the right to retreat in defence of himself or herself and the land when there is a threat to life or property.

To determine whether the defendants in the facts and circumstances of the case were entitled to a defence or if they went beyond it, the sections must be read collectively. Only then can one obtain a thorough understanding of the range and restrictions of the right.[7]

When these parts are taken as a whole, the essence they contain becomes clear. If there is a true and justifiable fear of danger to life, body, or property, the harm resulting from that fear must not be higher or greater than is necessary for the particular threat. The urgency of the circumstance, which is most important when the exception is really used, should always be considered when applying the exception and instead the act of self-defense itself.

In the case of Jagdish Chandra vs. State of Rajasthan[8], scope of understanding

Each private defense case is very well explained by the Venerable.

“Once the circumstances and context are understood,” the judge said in his ruling.

As analysed, we encourage you to put yourself in their shoes when making decisions.

“The fate of the situation,” how do you make a judgment in the defendant’s seat? To act in certain situations when a person is in danger. As a result, it is advised to examine the scenario from the perspective of the accused rather than from the perspective of a cool outside observer.” In various situations, according to common law, one person may use force against another in a defined location where, in his opinion, the right to private defence is being used.

1. Different Aspects of Private Defense:

The historic case of England provides an explanation for such a phenomena.

“The owner of a property who has a renter as a rent payer tried to evict (forcibly) a tenant from her home with the help of her friends without giving adequate notice. The tenant fired at the landlady’s companion in an effort to defend the property that was now entirely under his control and occupation. In this instance, it was determined that the tenant had the right to private defence to guard against the landlady’s[9] forcible removal. RESPECT FOR PROPERTY

In addition, courts in common law nations have ruled that a person who is about to be attacked should not wait until the assailant has finished the attack before taking pre-emptive action or striking [10]first; rather, the circumstances must warrant such action.

In a situation similar to the one described above, a victim of force used a shard of glass to lynch the perpetrator as a reactionary force after being attacked by him. The crucial distinction is that the victim did not realise she was holding the weapon because, in accordance with the earlier discussed principles, she had reverted back with her reflex. She lost her appeal after being found guilty in the trial court. She “had a right to the right of self-defense,” it was said.[11], “PROTECTION OF PERSON, BODY, OR LIMB,”

Charges brought under the Indian legal system’s Arms Act will not apply under this chapter IV of the IPC, as the judiciary clarified in the Verayya Vandayar v. Emperor[12] decision in 1935. Cases of the right to private defence may also be added for clarification. It should be noted that no such specific restrictions have been placed on the weapon or the way in which it is used because, with caution, any action taken in defence of saving person or property can be carried out in time of danger when such a threat arose, but the force must be proportionate to the force so applied to the accused.

2. Right to Private Defence under the Light of Article 21, Of the Constitution

According to Article 21 of the Indian Constitution, a person recognises “the right to life and personal liberty” as his foremost freedom. A panel of seven judges from the high court declared the principles of reasonableness, which, from a legal and philosophical point of view, are an essential component of equality and are also not arbitrary in nature. Personal life and liberty are valued highly in every civilised society, but they must be restricted in ways that are permitted by law.[13]

The legislation is only applicable when its use is warranted, which is when danger and imminent harm to life, health, or property are feared. As such, the exception so provided for under the “Right of Private Defence” should not be utilised as a form of retaliation or for any other purpose. Additionally, if a person or piece of property is impounded, he grants strangers the same protection. Because it frequently occurs that people who should not engage in anti-social behaviour do so in the name of private defence, when anyone engages in street fights and the like where there is no immediate danger or detention to the body, life and property the courts must exercise caution when deciding cases involving private protection.

Elimination of the Amount Invoke

A Person’s Right to A Private Defence

The discussion and explanation in the following parts focus primarily on the idea of expanding the applicability of this part of the law in accordance with the I.P.C. Each section’s specific aspects are explained in turn, with sections where appropriate combined.

Section 97: Protection of Person, Body, and Property

The protection of the body and the protection of property are the two main topics in this section, respectively. For an understanding of the nature and reach of the law covered by this provision, the Supreme Court made the following suggestions:

1. Person cannot be given the right to private defence unless the offence for which they are asking for assistance is also a violation of this code.
2. As mentioned in sections 102 and 105 of the IPC, protection provided under this section will last as long as there is a suspicion of a threat to life or property and will last until the threat has passed. The threat posed by this punitive personality must be genuine and unavoidable.
3. Because this right is continuous, it must be utilised to exact revenge when someone has injured someone or is likely to inflict harm. This right is exclusively for defensive purposes; it cannot be used to harm or inflict bodily harm on another person, such as in a street brawl.
4. The procedures outlined in this chapter must be followed in good faith.
5. If the detention is of a kind that, if it is not stopped, could result in death or other significant consequences, he may also authorise killing someone as described in section 100 of the code.

“The occurrence of incidents must be based on assumptions and assumptions.”

When understanding the statement, one should take the big picture into account, be aware of the effects of each action, and make sure to go forward.

Whether the fear is real or not is immaterial since if someone shoots someone else while they are in a fit of rage and instability, the victim may subsequently defend himself by using private defence or self-defense.[14]

In the event of free combat, it should be noted that this chapter’s provisions on the right to private defence do not apply if both parties mutually choose to engage in battle.[15]

The bottom line is that sections 96 to 100 should be read collectively because they apply in the real world when there is unlawful aggression, but the justification and defence under section 97 is very flimsy to distinguish it from committing an offence and acting in violation of this chapter; the moment one goes beyond their limit of defensive strength, it becomes a violation of this code, I.P.C.

Application of the Right to Private Defence Against Intoxicated and Unsound Persons (Section 98)

The activities of people who are mentally ill, intoxicated by alcohol, or who are not mature enough to appreciate the consequences of their actions are covered under this section. It provides that one person will be able to use his rights in respect to them if they are threatened with injury to their life, health, or property or that of others by a mentally ill person who is insane and in a condition of intoxication. also, disregard their unfortunate circumstances.

If the designers of this section had not included an exception for those who are insane, inebriated, or of unsound mind, this section’s goal would have been tragically unsuccessful. If private protection is not provided to the opposing party, he may very possibly injure people and property, which will result in the entire existence of this section collapsing.[16]

It should be kept in mind that a false or inaccurate description of property cannot be used to argue for a right to be exempt from protection.[17]

Section 99: Acts committed when there is no option for private defence

The right to private defence should be available when there is a threat to one’s life or property, but there are some restrictions. For instance, if a public official acts in good faith but causes harm to one’s person or property, that official will be exonerated because he or she was acting in the course of his official duties.

The owner of the house who resists the forcible entry against the police officers when government employees and police officers on duty at the scene do so without a search warrant for the house cannot use the police officers’ lack of malice as an excuse. Instead, he must prove that the police officers’ actions were legal.[18]

The situation analysis that follows demonstrates the significance of this part and how it might be understood in light of many scene variations.

Incorrectly believing that they were defending themselves against intruders on their property—who are actually the police officers who killed one of them—the search group arrived at the home of the accused after hearing noises outside and pulling out a gun. Believing they were defending themselves against intruders, they began shooting, killing one of them. The person who fired a shot at a government official in this manner is allowed the right to private defence, which is not a crime, according to this belief, assuming the police officers did not reveal their identities.[19]

The Supreme Court has emphasised time and time again that the law under this section allows for civil servants to take matters into their own hands when they have enough opportunity to request assistance from the authorities.

Section 100: Where the offence is so grave that it results in death

The section addresses fatalities brought on by using defence in accordance with this provision as follows:

1. when there is such intimidation or when the fear is so great that death seems impending.
2. If there is concern that death could result from substantial harm that could be done.
3. When the perpetrator makes an effort to rape someone.
4. When unnatural lust is sated, especially when it is done with the goal to do so.
5. This clause allows for the possibility of a defence in cases of attempted or actual kidnapping.
6. This section’s help may be used in cases of unjustified restriction of liberty where no other recourse is available from the government.
7. If someone intentionally spills acid on them or attempts to do so, in such grave situations the victim may kill the offender to save themselves.

The only requirement to continue under this provision is a grave fear. We can take into account the following example, which illustrates the circumstances in which it is restricted, to help stop the misuse of this section.

The party who assembled in front of the accused’s residence, rebuked them, and inflicted serious bodily harm may be exonerated by utilising their right to private defence given that he (the accused) attacked one of the parties and was prosecuted in line with Article 300 of this Code. Due to the tremendous bodily harm his father had endured, the court declared him not guilty.[20]

“The new class of offences established by the Criminal Law Amendment Act of 2013 that permits for private protection of the body extends to purposefully killing someone by dousing them in acid or pouring acid on them, both of which will result in grievous bodily damage as a result. This is in conformity with the suggestions and directives of the Verma Justice Committee.[21]

Section 103: The crime of using private defence that results in death to defend property

If the criminal also commits any of the other offences, this act has the potential to result in a person’s death:

1. in the event of a nighttime home invasion.
2. Committed or attempted to commit a home or property robbery.
3. The heinous act of lighting fire to a structure, tent, or other object that serves as a home or other dwelling.
4. the commission of theft or other harm that puts a person in danger of death or serious injury.

The following case analysis of the events that took place in the state of Kerala further explains the purpose of this section.

The defendant, who runs a flour mill in the state of Kerala, did not close his business on the day of the nationwide Bharat Bandh strike. The activists, who were armed with pointed objects as weapons, forced their way into the mill and demanded its closure. They threatened to harm someone, and when the attack was made, the defendants opened fire, killing two people and wounding a number of other innocent bystanders in the process. The mill, which was part of his land, was burned down. The court determined that the defendant’s conduct in firing the shot was appropriate and within reason, hence the court of first instance’s guilty decision was upheld.[22]

The word “settled possession” is explained in more detail in this section.

1. Describe settled possession.[23]

The person trespassing on someone else’s property has the right to do this.

1. The owner must actually possess the property for a sufficient amount of time.
2. Without revealing any details, the genuine owner of the property must be made aware that the property is in possession.
3. The process to follow if the owner is absolutely required to take possession.[24]

Sections 102 and 105, a person’s right to self-defense is maintained whenever there is a plausible fear for their safety and that of others.

When there is a comparable likelihood of danger or harm, the right under these sections is reserved. The right will remain in effect if the immediate threat continues in this manner.

The several types of detention are described below:

1. When a legitimate fear of harm to one’s body or property exists. When a genuine threat to one’s life, health, or property develops into a threat rather than being a direct threat, a right results.
2. When a threat is seen in accordance with Sections 102 and 105, and the crime in question starts to spread, it is very much allowed by the law to use force in a way that promotes “self-preservation”—basically, this is a way to defend oneself against unlawful assault.
3. If the confinement is inherently lifeless and terminal, the right to private defence is not provided.[25]

Section 106: Application for Private Defence when an Innocent Person is at Risk.

The section just briefly discusses situations where an innocent person suffers injury that is unintentional because it cannot be immediately attributed to him because of his presence alone. It is reasonable to assume that when exercising the right to private protection, when an act is likely to cause harm to any other person who does not have the right to private protection, it is not an offence in light of this section because this part of the code does not limit to the person to the body but also to property.

ILLUSTRATION: Assume a person is attacked by a mob to prevent him from causing severe bodily injury. When innocent bystanders are there, he shoots a bullet to protect himself even though they are present. Here, taking action is justifiable because it is necessary to defend a person or piece of property.

Conclusion

The right to private defence is primarily concerned with applying different remedies to offences that are already penalised under Indian law. When the paper is finished, Chapter IV will contain information on the numerous facets of this code’s application and development.

The beginnings of the code date back to Lord Macaulay, who initiated its evolution after realising that it would be unfair to the citizens of this nation if the code did not include a remedy for numerous offences. The bulk of the draught is doctrine that has been broken down into manageable chunks for study, in which we have clarified the many aspects of the right to private defence, starting with sections 96 to 106; this is followed by a small amount of case law and case studies for an honest look.

References

• “Dhirajlal, R. &. (2015). The Indian Penal Code. Lexis Nexis.”
• “Gaur, K. (2016). Textbook on India Penal Code. Haryana: Universal Law Publishing.”
• “Saxena, R. (2017). Indian Penal Code. Allahabad: Central Law Publishers.”
• “www.scconline.com/members. (2018, September) Retrieved from SCC ONLINE: https://www.scconline.com/members”

[1] Munney Khan v. State, AIR 1971 SC 1491

[2] Dharam & Ors. v. State of Punjab, (2010) 2 SCC 333 : (2010 1 SCR) 642

[3] R.N. SAXENA, INDIAN PENAL CODE, 156-157 (2017, 20 Ed.) Central Law Publications

[4] Kuduvakuzinyil Sudhakaran v. State, (1995) 1 Cr LJ 721 (Ker): Plea for self-defence was rejected where the evidence showed that the deceased was unarmed and was not the aggressor.

[5] Laxman v. State of Orissa, (1988)Cr LJ 188 SC

[6] State of Gujarat v. Bai Fatima & Anr., AIR 1975 SC 1478

[7] Kashi Ram v. State of Rajasthan, 2008 3 SCC 55

[8] Jagdish Chandra v. State of Rajasthan , 1987 CrLj 649

[9] R. v. Duffy, (1967) 1 QB 63

[10] Backwford v. Queen, (1988) 1 AC 130 PC per LORD GRIFFITHS at p. 144

[11] Evans v. Wright, (1964) CrLj 466; Evan v. Hughes, (1972) 3 All ER 2

[12] Verayya Vandayar v. Emperor, 1935 Mad. WD 1342

[13] Maneka Gandhi v. Union Of India, AIR 1978 SC 597

[14] Katta Surendra v. State of U.P.,2008 CrLj 3196 (SC): 2008 (2) UJ 819 (SC)

[15] Dwarka Prasad v. State of U.P., 1993 Suppl (3) SCC 141: 1993 SCC (Cri) 882

[16] Manikirki v. Emperor, 28 CrLj 445

[17] RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE

[18] Pukot Kotu, (1896) 19 Mad. 349

[19] Dhara Singh v. Crown, 48 CrLj 717: 231 I.C. 159

[20] Shive Chand v. State of U.P., 1995 CrLj 3869 (All.)

[21] RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE

[22] James Martin v. State of Kerela, (2004) 2 SCC 203

[23] R.N. SAXENA, INDIAN PENAL CODE

[24] Puran Singh and others v. State of Punjab, AIR 1975 SC 1674

[25] Naveen Chandra v. State of Uttaranchal, 2007 CrLj 874 (SC)