Right of Private Defence
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The Indian Penal code defines clearly where a citizen can practically take law in his own hands to defend the person and property, and this is termed as the Right of Private Defence of a Citizen.
S. 97. of the Indian Penal Code, 1860, defines the Right of private defence of the body and of property of every citizen :
Every person has a right, subject to the restrictions contained in the Code to defend -
| Firstly - | His/her own body, and the body of any other person, against any offence affecting the human body; |
| Secondly - | The property, whether moveable or immoveable, of himself/herself 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 or criminal trespass. |
S. 98. of the Indian Penal Code, 1860, further defines 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 soundness 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.
However S. 99. of the Indian Penal Code, 1860, describes when 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 or under his/her directions under colour of his office, though that act may not be strictly justifiable by law.
There is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
The right of private defence. in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
| Explanation 1 - | A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such unless he knows or has reason to believe, that the person doing the act is such public servant. |
| Explanation 2 - | A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded. |
S. 100 of the Indian Penal Code, 1860, further defines when the right of private defence of the body extends to Cause death :
The right of private defence of the body extends, under the restrictions mentioned 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 or the descriptions hereinafter enumerated, 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 reasonable cause him/her to apprehend that he/she will be unable to have recourse to the public authorities for his/her release. |
S. 102. of the Indian Penal Code, 1860, also defines commencement and continuance of the right of private. defense of the body :
The right of private defense of the body commences as soon as a reasonable apprehension. or 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.
S. 103. of the Indian Penal Code, 1860, further defines when the right of private defense of property extends to causing death :
The right of private defense of property extends, under the restrictions mentioned in the code, to the voluntary causing of death or of any other harm to the wrong-doer, 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 descriptions hereinafter enumerated, namely :
| First - | Robbery; |
| Secondly - | House-breaking by night; |
| Thirdly - | Mischief by fire committed on any building, tent or vessel which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; |
| Fourthly - | Theft, mischief, or house-trespass, under such circumstance as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defense is not exercised. |
S. 104. of the Indian Penal Code, 1860, further defines when such right extends to causing any 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 defense, 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 earlier, to the voluntary causing to the wrong-doer of any harm other than death.
S. 105 of the Indian Penal Code, 1860, further defines the time and place of the commencement and the continuance of the right of private defense of property :
The right of private defense of property commences when a reasonable apprehension of danger to the property commences
| 1) | The right of private defense of property for the offence of 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. |
| 2) | The right of private defense 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. |
| 3) | The right of private defense of property against criminal, trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief. |
| 4) | The right of private defense of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues. |
S. 106. of the Indian Penal Code, 1860, further defines the right of private defense against a deadly assault when there is a risk of harm to innocent persons :
If in the exercise of the right of private defense against an assault which reasonably causes 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 defense extends to the running of that risk.
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