What is Right of Private defence and when can it be exercised?

IPC: Right of Private Defence [Sections 96 - 106]

Scenario: Person ‘A’ suddenly attacks ‘B’ to kill him and ‘B’ saves himself and kills ‘B’. Following are the various questions raised.
- Is ‘B’ criminally liable for killing ‘A’?
- What options are available to ‘B’ to plead his innocence?
- Does IPC provide any defence options for exercising his defence? If so what is it called?


Let’s discuss in this article, various scenarios and answers, in detail about sections provided by the IPC for the act of right of private defence.

Any act of a person to save himself or property is called the right of private defence.  Common law provides the right of every person to save himself or his property or anyone or their’s property against any unlawful attacks.

Chapter 4, General Exceptions of the Indian Penal Code, 1860 and from Sections 96 to Sections 106 mentions various provisions of the Right of private defence to a person or property or any person’s body or property.

Section 96 of the IPC states that nothing is an offence which is done in the exercise of the right of private defence.  

IPC Section No	Title of the Section
96	Things done in private defence
97	Right of private defence of the body and of property
98	Right of private defence against the act of a person of unsound mind, etc
99	Act against which there is no right of private defence
100	When the right of private defence of the body extends to causing death
101	When such right extends to causing any harm other than death
102	Commencement and continuance of the right of private defence of the body
103	When the right of private defence of property extends to causing death
104	When such right extends to causing any harm other than death
105	Commencement and continuance of the right of private defence of property
106	Right of private defence against the deadly assault when there is risk of harm to innocent person

SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE

The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:
"….. a man is justified in resisting by force anyone who manifestly intends and endeavours by violence 19 or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."

The law clearly intended to encourage citizens with the spirit of self-defence when faced with grave danger and the law does not require law-abiding citizens to be like a coward when confronted with unlawful aggression. Thus right of private defence is to serve a social purpose and deserves to be encouraged with the certain limits prescribed.

Can the right of private defence be used to take revenge?

Right of private defence is a well-settled law that a right of private defence is only the right to defend himself or property and not to take revenge or retaliate.

When can we exercise the Right of Private defence?

The courts  observed that in the following circumstances the right of private defence can be exercised:

1) No time for recourse to the public authorities:
When there is no sufficient time for recourse to the public authorities and if he needs to defend any element of unlawful aggression against him or concerned property, the person has the undoubted right to resist the attack and use even force if necessary.

2) Reasonable apprehension of death or grievous hurt to the person or the property.
There must be a reasonable apprehension of death or grievous hurt to the person or danger to the property concerned. 
Here person concerned can exercise the right of private defence for any act which harms 
a) his body or
b) his property or
c) any other person or
d) any other person’s property

Section 97: The Right of Private Defence of the Body and Property states that right for both body and property of himself and anyone’s.

3) More harm than necessary should not have been caused. 
The right of private defence should not be excessively used to create more harm than required to defend. 

Case Law: Mahabir Choudhary v. State of Bihar (1996)
The court held that the first degree of the right of private defence is available even if the wrong was committed or attempted to be committed against anyone. This right of private defence cannot be used to kill the wrongdoer unless you have reasonable cause to fear that death or grievous hurt might ensue in which case you have the full measure of right of private defence. The High Court erred in holding that the appellants had no right of private defence at any stage. However, the court upheld the judgment of the sessions court holding that since the appellants had the right of private defence to protect their property, in the circumstances of this case, the appellants had exceeded the right of private defence.

Relevant factors:

To find out if the right of private defence is available or not, the courts have considered several factors such as 
a) the injuries received by the accused
b) the imminence of danger or threat which is present and real
c) the injuries caused by the accused
d) the circumstances of the accused if he had time to recourse to public authorities
e) if the accused himself had initiated the attack
f) if it is a free fight between both parties and both act as aggressors.
g) if it is against lawful acts.

If the accused has taken the plea of right of private defence, it is not necessary that he should prove it beyond reasonable doubt.

Case Law: Jagtar Singh v. State of Punjab AIR 1993
The court held that the accused need not prove beyond a reasonable doubt his plea to the right of self-defence. If the circumstances warrant that he had a reasonable apprehension that death or grievous hurt was likely to be caused to him, then he would acted in the right of self-defence and he would be doing so lawfully.

The court had again laid down certain principles for the Right of Private defence in the below case:
Case Law: Darshan Singh vs. State of Punjab (2010):
- Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

- The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. 

- A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence to give rise to the right of private defence. It is enough if the accused is apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. 

- The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

- It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. 

- In private defence, the force used by the accused ought not to be wholly disproportionate or much greater than necessary for the protection of the person or property.

- It is well settled that even if the accused does not plead self-defence, it is open to considering such a plea if the same arises from the material on record.

- The accused need not prove the existence of the right of private defence beyond a reasonable doubt.

- The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

- A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.