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Right of private defense under Indian Penal Code

Chapter IV (general exception), section 96 to 106 explain the provision of the Right of private defense. The right of private defense rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self defense.

Basic Principle: self preservation is the private instinct of every human being. Every man has the right of private defense his own body, property and the body and property of his nearer. This basic principle has been recognized in the IPC to give protection to the wrong doer, who commits a criminal act in the course of protecting his person, property, body and property of his nearest.

Russel: Justified the killing of an aggressor, against the exercise of the right of private defense for saving her body and property.

Bantham also justified the principle of self preservation in his principle of penal code, he admit that Magistrate (State) is not such capable to vigilance (save) every individual, nor the fear of law can restrain bad men as the fear of the sum total of individual resistance.

Right to private defense and IPC.

S.96, define that nothing is an office which is done in the exercise of the right of private defense, which lays done the general rule on the right of private defense. While S.97 which deals with the subject matter of the right of private defense of body and property and lays down the extent of the right of private defense, proclaims that every person, subject to restrictions contained in S.99, has a right to defend his own body and the body of another , against any office affecting human, and right to defend the property of his own and his nearer or any other person against any act which is an offence falling under the definition of theft, robbery, mischief, or criminal trespass. and S.99 lists the situation wherein the right to private defense of body as well as property is not available to an individual, s102 and s105 deal with commencement and continuation of right to private defense of body and property.

Whereas SS.100,101,103,104 deals with the extant of harm (including voluntary death) that my be inflicted on the assailant in exercise of the right of body and of property respectively, while S.98 also provide the right of private defense against the lunatic person as well.

S100.Right of private defense of the body extends to causing death:

The right of private defense of the body extends to causing death is recognized by S100 of IPC, but this right is subject to the restrictions mentioned in the S.99 of IPC, to the voluntary causing of death or of any other harm to the assailant, when any one of the six situations stipulated therein arise in the committing of the offence of body extend to the causing of voluntary death of the actual or potential assailant if he through either of the specified assaults causes reasonable and immediate apprehension of death or grievous hurt in the mind of the accused.

The categories of assault specified in the sections are:

Assault to kill.
Assault to cause grievous hurt.
Assault to commit rape.
Assault to gratify unnatural lust.
Assault to kidnap or abduct
Assault to wrongfully confining a person and the accused cannot recourse to the public authority for his release.

Reasonable apprehension of Death or Grievous hurt Sufficient:

The first clause of s.100 stipulates that the right of private defense of body extends to causing death, when such an assault reasonably causes the apprehension that death will otherwise be the consequence of such assault.

the second clause of s100 stipulates that when an assault caused the reasonable apprehension that grievous hurt will otherwise be the consequence of such an assault, the right of private defense extends to causing of death.

In order to avail of such exception of criminal liability under this clause, what is require to be establish is that there was reasonable circumstances giving rise to reasonable apprehension of either death or grievous hurt. Such an apprehension of death or grievous hurt must be real or reasonable and not an illusory or imaginary. It must be present and imminent and not remote or distant one. The reasonable apprehension of cause of death or grievous hurt will be caused to him , however is required to be judged from the subjective point of view and it cannot be subject to microscopic and pedantic scrutiny.

The accused must be bona fide fear that death or grievous hurt would otherwise be the consequence of the assault if he done not defend. It is not essential that actual injury should be caused by the aggressor or the victim before the right of self defense can be availed of. Person apprehending danger is not required to wait for sustaining injury. Mere apprehension is sufficient to exercise his right of private defense.

Exception of Right to Private Defense

Right to private defense not available to aggressors.

There is no right to private defense can be claimed by the aggressors. It is available against any offense and therefore, where an act is done in exercise of the right of private defense, such act cannot rise to any right of private defense in favor of the aggressor in return. Chacko v/s state of kerala.

Quantum of injuries:

If a person exercising the right of private defense has the better of the aggressor, provided he does not exceed his right because the movement he exceeds it he commits and offense. The injuries given to the aggressor by the accused must be in propositioned the assault.

Free fight:

There is no defense available of right of private defense when there is a free fight between two parties or individual, one another using unlawful force against each other. Both the sides mean to fight from the start. And they have the same intention to give the injuries to other.

No right of private defense available in the following condition also:

Against lawful acts.
Unlawful assembly.

Case Laws.

Vishwantha v/s Stateof UP AIR 1960 SC 67

SC held that appellant had the right of private defense of person under the fifth clause of s.100 IPc and did not cause more harm than was necessary and acquitted the appellant.

State of UP v/s Zalim and other.

SC held that mere apprehension of death is not the ground of right to private defense.

State of UP v/s Chattur sing

Hon'ble court held that accused intention and premeditated notion to murder is clear and accused is liable to be convicted to be murder.

Conclusion:

Right to private defense is essentially a defensive right circumscribed by the IPC and it is available only when the circumstances clearly justify it. It is exercised only to repel unlawful aggression and to punish the aggressor for the offence committed by him. It is basically preventive in nature and not punitive. It is neither a right of aggression nor a reprisal. Its exercise cannot be vindictive or malicious.

About the Author

Hi, my name is Naveen Kumar Shelar. I reside in New Delhi, India currently employed full time as a Facility & Administration Professional .

I started out as a Executive Administration late in 2005 evolved into a Facility & Administration with time and now I'm into New office development and Planning . I am mostly involved in new office infrastructure planning, procurement development, execution, and operations, not only this but I love to policies and procedure drafting for office operations.

When I'm not working I am mostly into sports like Cricket or Chess. I'm also into movies and music big time. I love spending time at home on holidays with my Family and pet.

My father and my mother has been a great source of inspiration for my life.

Specialties: New office set up and it's whole life cycle, in technology driven organizations. Competitive analysis, process compliance & improvements, policy and procedure drafting, legal Agreement drafting.

Education: