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Right to Private Defence |Explained!

Introduction:

Everyone has a right to private Defence. Right of self-Defence is based upon the general maxim that “necessity knows no law” and “it is the primary duty of man to first help himself” 

Self-help is the first rule of criminal law. The Indian Penal Code, 1860 has given the right of private Defence of body and property to every Individual. The law relating to the right of private defence of person and property is found in sections 96 to 106 of the Indian Penal Code.

       The fact is that State cannot watch every activity of the citizens. When a person’s life or property is at risk, the State may be unable to assist them instantly. Given this Indian Penal Code has given the right of private Defence of the body and property of every individual. In the words of Bentham, “The Right of Private Defence is necessary for the protection of one’s life, liberty, and property. “

Nature of The Right to Defence:

A man’s first responsibility is to help himself. The right to self-Defence must be fostered in the Citizens of every free country. The right is recognized in every system of law and its extent varies in the inverse ratio to the capacity of the state to protect the life and property of the subject(citizens).

It is the state’s primary responsibility to safeguard citizens’ lives and property, yet no state, no matter how wealthy, can afford to dispatch a cop to track down every criminal in the country. An act done in exercise of this right is not an offense and does not, therefore, give rise to any right of private Defence in return. 

Factors need to be kept in mind in considering the act of private Defence:

  • If there was sufficient time for recourse to public authorities or not
  • If the harm caused was more than what was necessary to be caused or not
  • If there was a necessity to take such action or not
  • If the accused person was the aggressor or not
  • If there was a reasonable apprehension of death, grievous hurt, or hurt to the body or property. 

Indian Penal Code-

Section 96 to 106 of the 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 the wrongdoer to protect one’s 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. 

See also  Indra Sawhney vs. Union of India

When immediate aid from the state machinery is not readily available, the provisions in these sections give a man the authority to use necessary force against an assailant or wrongdoer to protect one’s own body and property, as well as another, ‘s body and property, and he is not held accountable in law for his actions.

Section 96:

The right of self-Defence under Section 96 is not absolute but is qualified by Section 99 which says that the right in no case extends to the inflicting of more harm than it is necessary for Defence. The onus of proving the right of private Defence is upon the person who wants to plead it. 

Section 97:

Every person has the right to protect his or her own body, as well as the bodies of others, against any offence affecting the human body, subject to certain limitations. Second, he or any other person’s property, whether movable or immovable, against any act that is a theft, robbery, mischief, or criminal trespass violation, or that is an attempt to commit theft, robbery, mischief, or criminal trespass offence.

Section 98-

When an act that would otherwise be a certain 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.

Section 99- 

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.

See also  All About Contingent Contract |ICA, 1872

Section 100-

The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offense which occasions the exercise of the right is of any of the descriptions hereinafter enumerated.

Section 101- 

This section prescribes when the right of self-defence extends to causing any harm other than death. If the offense is not of the nature mentioned in the above section, the right of private Defence of the body does not extend to the voluntary causing of death to the assailant but does extend, to the voluntary causing to the assailant of any harm other than death.

Section 102- 

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. The apprehension of danger must be reasonable, not fanciful.

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.

Section 104- 

It says that if the committing or attempting to commit any offense leads to the exercise of the right of self-defence, then such a right does not extend to the voluntary causing of death but extends to the voluntary causing to the wrongdoer of any harm other than death. Provided that the offense is not of any other nature as described in the previous section.

Section 105- 

The Right of private defence of property commences when a reasonable apprehension of danger to the property commences. The right of private defence of property against theft continues till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

See also  Law Notes | IPC Section 1-5 |Study Material

The right of private defence 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 instant hurt or instant personal restraint continues.

Section 106-

This section mentions that private defence against deadly assault when there is a risk of harm to an innocent person. If in the exercise of the right of private defence by a person against an assault causes reasonable apprehension of death, the defender so situated, cannot effectually exercise the right of private defence without risk of harm to an innocent person his right or private defence extends to the running of that risk.

Conclusion: 

The right of private defence has been recognized in law in almost all countries today. It is a right of a person to defend the body and property of himself and others. If someone commits an act in this process, it is no offense.

Subject to limitations and conditions, it a right of every individual. The law has given liberty to a person instead of private defence to even cause death in certain cases. This is because the law has itself has accepted that self-protection is the primary duty of every individual.

Law will not be able to help someone who is not capable of helping himself when something wrong happens to that person.

Right of private defence is a good weapon in the hand of every citizen to defend himself. This right is not of revenge but toward the threat and imminent danger of an attack. But people can also like misuse this right. It’s very difficult for the court to find out whether this right had been exercised in good faith or not.

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