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"PRIVATE DEFENSE-SELF PRESERVATION"

PRIVATE DEFENSE

 




ABSTRACT

As we have well known that the right to private defense in criminal cases is an important and necessary right. This right helps a person to prevent crime happening or could happen against the body or any property. This right is based on the principle of self-preservation. In this series, we are trying to understand under what circumstances this right comes into existence, where it starts and ends and what are its limitations. Sections 96 to 106 of the IPC refer to self-defense. Self-defense has been said in section 96 of the Indian Penal Code. Whereas section 97 states that everyone has the right to protect body and property and can attack in self-defense. At the same time, according to section 99, the act should be renewable, that is, the criminal should be harmed as much as necessary.

 



PRIVATE DEFENSE

Private defence is a right available to every citizen of India to protect themselves from any external force that can result into any harm or injury. In layman’s language it implies the use of otherwise unlawful actions in order to protect oneself or any other individual, to protect property or to prevent any other crime.





RIGHT TO PRIVATE DEFENCE



 In the words of Bentham, "The Right of Private Defence is absolutely necessary for the protection of ones life, liberty and property."

Section 96 to 106 of Indian Penal Code, 1860 states the law relating to the right of Private Defence of person and property. These provisions under the Indian Penal Code gives authority to a man to use necessary force against wrong doer for the purpose of protecting ones own body and property and also another's body and property when immediate aid from the state machinery is not readily available  and in so doing he is not answerable in law for his deeds.

 

when a person is attacked (on a body or property), he has the right to defend himself from an attack on himself or on his property and on himself or another's body on his or her own Use personal immunity against attacks on the property of others and eliminate the danger that has been growing or has grown. Our law does not allow us to run away from danger like cowards nor to take revenge [Darshan Singh v. State of Punjab (AIR 2010 SC 1212)].

 

It was clarified in the cases of Amjad Khan v. State (AIR 1952 SC 165) and Buta Singh v. State of Punjab [(1991) 2 SCC 612] that it did not say when a serious threat arises on a person's body or property. He can sit on the 'Golden Scale' weighing things up to what extent he attacks his attacker, and then he exercises his right to personal defense. Finally, we should not forget that all this right is subject to the provisions of section 99. In this article, we talked about the right to property right up to death and understood it from the point of view of many famous promises.

 

Apart from this, we have also seen cases where the right to cause death is not available, apart from this we also understood the limitations of this right.





MAIN PRINCIPLE OF RIGHT TO DEFENSE

The law of private defence is based on two main principles -

(a) Everyone has right to defend his own body and property and anothers body and persons.

(b) The Right of Private Defence is not applicable in those cases where accused himself is an aggressive party.

 

 



SECTION 96

THINGS DONE IN PRIVATE DEFENCE (SECTION 96)

Nothing is an offence which is done in the exercise of the right of private defence.

IPC Section 96 to 106 of the penal code states the law relating to the right of private defence of person and property.

The provisions contained in these sections give authority to a man to use necessary force against an assailant or wrong-doer for the purpose of protecting one’s own body and property as also another’s body and property when immediate aid from the state machinery is not readily available and in so doing he is not answerable in law for his deeds. Section 97 says that the right of private defence is of 2 types:

(i) Right of private defence of body,
(ii) Right of private defence of property.

Body may be one’s own body or the body of another person and likewise property may be movable or immovable and may be of oneself or of any other person. Self-help is the first rule of criminal law. The right of private defence is absolutely necessary for the protection of one’s life, liberty and property. It is a right inherent in a man. But the kind and amount of force is minutely regulated by law. The use of force to protect one’s property and person is called the right of private defence.

 

That self-defense has been said under Section-96 of the IPC. At the same time, under Section-97 of the IPC, it has been said that every person has the right to protect the body and property and for this he can attack in self-defense. At the same time Section-99 says that self-defense should be regenerable. That is, the offender can be inflicted as much damage as is needed. According to the legal expert Goswami, according to Section 100, even if the death of a criminal in self-defense can be prevented even if such an act is done under the legal provision. If there is a risk of serious injury, rape or misdemeanor, if the offender is in an attempt to kidnap, then in the case of an attack in a self-defense, if the offender dies, he can be protected. But it has to be proved that it was attacked due to the above reasons.

 

 




SECTION 97

RIGHT OF PRIVATE DEFENCE OF THE BODY AND OF PROPERTY (SECTION97)

Every person has a right, subject to the restrictions contained in Section 99, to defend-

Firstly -His own body, and the body of any other person, against any offence affecting the human body;

Secondly -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 trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

Section 97 of Indian Penal Code divides the right of private defence into two parts. First part deals with the right of private defence of person and second part with the right of private defence of property. The rights of defends is not only to the defence of own body or property but also extend to defending the body and property of any other person. Even a stranger can also defend the person or property of another person and vice versa.

 

Section 97 tells us that the right to immunity of property is available in cases of criminal trespass. We have to understand that where a person enters only someone else's property, he becomes a trespasser, although when the intention behind that entry is due to committing the offense mentioned in section 441, then that entry is criminal trespass (Criminal trespass ) it happens. And the right to immunity to property is available only in cases of criminal trespass.

 

Section 441 says,

If someone enters such property or on such property which is in the possession of another, with the intention of committing an offense or of any person who has such property in his possession; Intimidate, humiliate or harass, or enter into such property or on such property, lawfully, and remains there in a legal manner with the intention of intimidating, humiliating or harassing any such person or with the intention that If he commits a crime, he is said to commit criminal trespass.

 

In Cherubin Gregory v. State of Bihar (AIR 1964 SC 205), the deceased lived near the house of the accused. About a week before the day of the incident the toilet wall of the deceased's house collapsed and hence the deceased along with others started using the accused's toilet. The accused protested his arrival there. Verbal warnings, however, proved to be ineffective, and so they decided that the bare copper wire en route to it would be fitted on the toilet and that electricity would flow through the wire that was connected to their home's wiring. On the day of the incident, the deceased went to the appellant's toilet and touched the naked wire he had already placed there, resulting in his immediate death. The court did not consider it an act done in the custody of the property and said that a trespasser is not a robber. Only because a trespasser enters the land does not entrust himself to direct violence. The current voltage emanating from the wire negates that it was a reasonable precaution to protect private property.  

 


(Section 98)

RIGHT OF PRIVATE DEFENCE AGAINST THE ACT OF A PERSON OF UNSOUND MIND ETC

 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.

ILLUSTRATIONS
(a) Z, under the influence of madness, attempts to kill A; Z is guilty of no offence. But A has the same right of private defence which he would have if Z were sane.

(b) A enters by night a house which he is legally entitled to enter. Z, in good faith, taking A for a house-breaker, attacks A. Here Z, by attacking A under this misconception, commits no offence. But A has the same right of private defence against Z, which he would have if Z were not acting under that misconception.

 

SCOPE: 
Section 98 of Indian Penal Code assumes that the right to private defence from its very nature admits of no exception since it is the right of preservation of one's life and property as also another's life and property against the world at large. The right of defence of the body exists against all attackers, whether with or without mens rea.


RIGHT OF PRIVATE DEFENCE IS AVAILABLE AGAINST -

 (i)Minor;
(ii)Person of unsound Mind;
 (iii) Intoxicated Person
  (iv) Person  having no maturity of understanding
  (v) Person acting under misconception.




SECTION 99

ACTS AGAINST WHICH THERE IS NO RIGHT OF PRIVATE DEFENCE(SECTION99)

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 under colour of his office, though that act may not be strictly justifiable by law.

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 the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.

Extent to which the right may be exercised - 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.

Explanation1 -
 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.

 

Explanation2-

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.





SECTION100

TO INVOKE SECTION 100 OF INDIAN PENAL CODE FOLLOWING FOUR CONDITIONS MUST EXIST.

(1) The person exercising the right of private defence must be free from fault in bringing about encounter.

(2) There must be present an impeding peril to life or of great bodily harm, rape, unnatural lust, kidnapping or abduction, wrongful confinement etc.

(3) There must be no safe or reasonable mode of escape by retreat, and

(4) There must have been a necessity for taking the life.




SECTION 101

WHEN SUCH RIGHT EXTENDS TO CAUSING ANY HARM OTHER THAN DEATH(SECTION101): 

 If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.

 



SECTION 102

COMMENCEMENT AND CONTINUANCE OF THE RIGHT OF PRIVATE DEFENCE OF THE BODY(SECTION102):

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





SECTION 103

WHEN THE RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH(SECTION 103): 

The right of private defence of property extends, under the restrictions mentioned in section 99, 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 -

     

It is clear from this section that the extension of the right to private immunity extends to death, when the following offenses are committed or attempted.

(1) robbery

(2) house breaking by night

(3) Mischief made by fire in a construction, tent or vessel, which is used as a human dwelling or as a place of custody of property.

(4) Theft, retaliation or criminal trespass in such a situation as to cause reasonable apprehension that if such right of private immunity is not exercised, the result will be death or gross misconduct ( grievious will hurt).

 

AFTER ALL, WHEN DOES THE RIGHT TO PRIVATE DEFENSE OF PROPERTY EXTEND TO DEATH?

Section 103 of the Penal Code states clearly what the circumstances would be where a person could commit the death of an attacker in the exercise of the right to private defense of property. The extension of the right to private defense of property is subject to the restriction of death or other abduction of the perpetrator subject to the restrictions described in section 99, if the offense for which the crime was committed, or the opportunity to be committed, is occasioned to exercise that right.





SECTION 103 READ WITH SECTION 104,

SECTION 104 SAYS: -

If an offense, which is intended to be committed or committed, constitutes an opportunity to exercise the right to personal immunity, is a theft, lewd or criminal trespass not unlike any of the foregoing enumerated in the foregoing section. Expansion does not cause voluntary death, but its extension is subject to the restrictions described in section 99, any damage other than the death of the culprit Security is to be caused.

In fact, the right to private immunity granted under section 104 does not permit the death of an attacker, although nothing can be done in the right of private immunity except to commit death. It covers all the cases which are not given in section 103. It is just as the death of an attacker (in the body's immunity) can only be committed under the cases mentioned in section 100, and section 101 states that any injury or loss can be inflicted in other cases ( Excluding death). It is necessary to reiterate that in any case, the practice of the right to private immunity is not allowed to cause excessive hijacking.

 

 

Ali Mia [AIR 1926 Cal. 1012] in the case it was postulated that there should be circumstances which might lead to the apprehension that non-exercise of this right would result in death or gross harm. However in State of Uttar Pradesh v. Shiv Moorat [1982 Cri. L. J. In the case of 2003 (All.)], It was decided that these provisions indicate when we need to know whether the action of the accused to injure the victim in the alleged exercise of the right to self-defense was appropriate and whether The use of the right made the offense committed void (or reasonable), we would need to know if the intention of the accused to commit such an injury or assault was 'sow fied' or not.





SOME MAJOR CASES RELATED TO SECTION 103

1.     In the suit of Patil Hari Meghji v. State of Gujarat (AIR 1983 SC 488), a person was arrested on the ground by the accused in the right of private immunity, and when he was unarmed and all possibilities of committing the abduction were over, Even after that the accused continued to attack him, in which case it was held that the accused did not have the right of private immunity.

 

2.     In the case of Gurdutt Mal (AIR 1965 SC 257), the people who were killed did not have any lethal weapons, and they were working peacefully in the field under police protection. Instead of seeking help from the public officer, the accused, who was claiming his crops on the farm, removed the police personnel and then attacked the dead persons with guns and other lethal weapons and shot them very closely. Granted. It was held that the dead persons were not committing robbery and hence the accused did not have the right to die.

 

3.     In the case of Kyaw Jaan Halla [(1904) 1 Cri LJ 997] a thief entered the sugarcane field and started cutting the sugarcane with dah (a sharp and lethal weapon). The owner (accused) of the sugarcane field, he heard the sound of harvesting, came forward and attacked the thief from the commanding CROSSBOW on the side from which the voice was coming and died on the spot. It was held that since the thief had a jealousy, the command carried out by the accused in defense of his property was not carried out thinking that it would lead to the death of the thief but because the accused in good faith defends his property He was executed and the court considered his act as rational.

 

 



SECTION 105

ADHERENCE AND CONTINUANCE OF RIGHT TO PERSONAL DEFENSE OF PROPERTY (SECTION 105)

 

The right to personal defense of property begins when there is a reasonable risk of danger to the property.

The right to private defense of property against theft continues until the offender has effected his retreat with the property either the assistance of public officials is obtained, or the property has been recovered.

The right to personal defense of property against plunder continues as long as the perpetrator causes the death or injury or wrongful restraint of a person or as long as there is a possibility of immediate death or immediate injury or immediate personal restraint.

The right to personal defense of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right to personal defense of property against house breaking continues until night, as house-theft initiated by such house-breaking continues.

 

[AMJAD KHAN V. STATE (AIR 1952 SC 165)]

On March 5, 1950, a communal riot broke out in Katni between some Sindhi refugees living in the town and local Muslims. On the spot, it was found that there were items scattered in the shops of Muslim people in that area. There is also evidence that some Muslims lost their lives and those shops were looted. There was also the appellant's shop in the same area, which is located to the west of Zanda Bazaar (where this incident took place). It was proved that when riots broke out in Zanda Chowk, panic spread in the area of ​​the appellant and the people including the appellant started closing their shops. The mob eventually reached the area and entered the part of the east facing building in which the appellant's brother's shop is located and was looted. Other members of the family came to the appellant and sought asylum from him. The crowd continued to break at his door with sticks. The Supreme Court held that it was enough that the mob had actually penetrated into another part of the house and robbed it, after which the women and children of their family ran to the appellant for the protection of their lives and the mob was actually There were sticks on his door, Muslim shops were already looted and Muslims were killed in the surrounding area. It was impossible for the appellant to know whether his shop would be looted or not and whether he would face the same trouble or not. He had the right of immunity and was in fact obliged to protect his family. The court further said that the right to private immunity under Sections 102 and 105 starts where there is a reasonable apprehension of crisis on body or property.

 

 




SECTION 106

RIGHT TO PRIVATE DEFENSE AGAINST LIFE-THREATENING ATTACK FOR INNOCENT PERSON (SECTION 106):

 

If in the exercise of the right to a personal defense against an attack that causes the possibility of death, the defender is so situated that he cannot effectively exercise any right to innocent person without risking harm, his right and private defence extends to that risk race.

 

Illustration:

A is attacked by a mob that attempts to assassinate him. He cannot effectively use his right to personal defense without firing at the crowd, and cannot fire without the risk of harm to young children who mingle with the crowd. If someone fires, one does not commit a crime because he harasses the children.

 

 



SECTION 108

WHEN SUCH RIGHT TO CAUSE ANY HARM OTHER THAN DEATH (SECTION 108):

 

If the offense, of which the crime, or attempt to do so, which exercises the right to personal defense, is theft, mischief, or criminal trespass, not any of the details described in the preceding statement, which is true. The cause of death is not an extension to the voluntary, but is subject to the restrictions mentioned in section 99 due to the voluntary for the wrongdoer of any loss other than death.

 

 

 


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