Right of private defence of person and property, under the Indian Penal Code has been defined from section 96-106. This section provides an authority to the person to use necessary force to protect himself and his property against the wrong doer when an immediate aid from the state is not available. For the purpose of this section body may be his own body or someone else’s and property may be movable or immovable of his own or some other. Right to private defence is the top most priority for the protection of one’s life liberty and property. It should be kept in mind while using the force that, it should be used in a reasonable manner and it is minutely regulated by law. It not a right to be given or taken from somewhere but it is an inherent right.
Section 96 says, nothing will be countable as an offence which is done in the exercise of private defence. The right to self-defence under Section 96 is not unlimited; it is limited by Section 99, which states that the right does not extend to inflicting greater injury than is required for self-defence. It is well established that neither party has a right to private defence in a free battle, and each man is responsible for his own actions.
There are two important limitations on the right of private defence that, in no circumstances an act will be justified as an private defence which strictly is an offence. Secondly, the right cannot be claimed when you yourself have courted the attack. It should be noted that the burden of proving an exception is on the accused.
Subject to Section 99’s limitations, every person has the right to defend: First, his own body and the bodies of others against any offence affecting the human body; Second, his or another’s property, whether movable or immovable, against any act that is an offence falling under the definition of theft, robbery, mischief, or criminal trespass, or that is otherwise unlawful. This section restricts the use of the right of private defence to situations in which it is absolutely necessary. Normally, the accused must plead the right of private defence but even if an accused does not plead it is open to the court to consider the plea of private defence if it arises from materials on record.
When an act that would otherwise be an offence is not that offence due to the youth, lack of maturity of understanding, unsoundness of mind or intoxication of the person doing the act, or any misunderstanding on that person’s part, every person has the same right of private defence against that act as he would have if the act were that offence.
If done, or intended to be done, by a public worker operating in good faith under the colour of his office, there is no right of private defence against a conduct that does not reasonably induce the apprehension of death or grave harm, even if such act is not strictly justifiable by law. The conditions and limits within which the right of private defence can be exercised are outlined in Section 99. A man is given a defensive right rather than an offensive right under this provision. This is so, it does not arm a man with arms and ammunition, but rather encourages him to help himself and others if a reasonable fear of harm to life and property exists.
The right of private defence of the body extends, subject to the limitations set forth in the preceding section, to the voluntarily infliction of death or other harm on the aggressor if the crime that prompts the exercise of the right is one of the following:
First, any assault that could reasonably lead to the belief that death will result as a result of the assault.
Second, any assault that could reasonably lead to the fear that serious harm will result as a result of the assault.
Third, an assault with the aim to commit rape.
Fourth, an assault with the intent to satisfy unnatural passion.
Fifth, an assault with the intent to kidnap or abduct.
Sixth, an assault with the goal of wrongfully confining a person under conditions that may reasonably cause him to believe he will be unable to seek redress from the authorities.
Four requirements must be met in order to exercise the provisions of section100, I.P.C.
- The individual exercising the right of private defence must be without fault in bringing about the encounter.
- There must be a threat to life or serious bodily harm present.
- There had to be no safe or reasonable way to flee by retreat
- There had to be a compelling purpose for taking the life.
If the offence is not one of those listed in the preceding section, the right to private bodily defence does not extend to the voluntary infliction of death on the assailant, but it does extend, subject to the limitations set forth in Section99, to the voluntary infliction of any harm other than death on the assailant.
The right to private body defence begins when a reasonable apprehension of bodily harm emerges from an attempt or threat to conduct the offence, even if the offence has not yet been committed, and continues as long as such apprehension of bodily harm exists. The fear of risk must be reasonable, not irrational.
Under the restrictions set forth in Section99, the right of private property defence extends to the voluntary infliction of death or other harm on the wrongdoer if the offence, the commission of which, or the attempt to commit which, causes the exercise of the right, is an offence of any of the descriptions hereinafter enumerated.
Second, night housebreaking
Third, causing damage to any house, tent, or vessel that is utilised as a human home or a place for the custody of goods by setting fire to it.
Fourth, if such right of private defence exists, theft, mischief, or house-trespass under such circumstances as may reasonably cause anxiety that death or grave harm will result.
If the offence for which the right of private defence is exercised is theft, mischief, or criminal trespass, not one of the descriptions enumerated in the preceding section, that right does not extend to the voluntary causing of death, but it does extend, subject to the restrictions set forth in section 99, to the voluntary causing of any harm to the wrong other than death
When a reasonable anticipation of harm to the property arises, the right to private property defence comes in. The right to private property defence against theft lasts until the criminal has fled with the property, or the property has been recovered, or the perpetrator has secured the assistance of the public authorities. The right to private property defence against robbery exists as long as the offender causes or attempts to inflict death, bodily harm, or unlawful constraint to any person, or as long as the fear of instant death, bodily harm, or personal restraint exists.
If the defender is in a position where he cannot effectively use his right of private defence against an assault that legitimately causes the apprehension of death without endangering an innocent person, his right of private defence extends to the running of that risk.