Right of Private Defence

By | September 27, 2016
Every person has a right, subject to the restrictions contained in section 99, to defend :
1. First :  His own body, and the body of any other person, against any offence affecting the human body.
2. 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 ana attempt to commit theft, robbery, mischief or criminal trespass.
                     RIGHT OF PRIVATE DEFENCE OF BODY  
Section 97 lays down that every person has a right subject to restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. Section 102 of IPC provides that 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.
             It is clear from the wording of the section that the right commences and continues as long as danger to body lasts.  The extent to which the exercise of the right will  be justified will depend not on the actual danger but on whether there was reasonable apprehension of such danger. There must be an attempt or threat, and consequent thereon an apprehension of danger, but it should not be a mere ide threat.  There must be reasonable ground for the apprehension.
            The right of private defence of the body extends to the voluntary causing of death or any other harm to the assailant if the offence occasioning the exercise of the right be of any of the following descriptions, viz :
1. An assault causing reasonable apprehension of death.
2. Even injury to innocent persons in the right of private defence against an assault is excusable.
3. Assault with the intention of committing rape, gratifying unnatural lust, kidnapping or abducting or wrongfully confining a person causing reasonable apprehension that he will not be able to have recourse to the public authorities for his release.
     For the purpose of exercising he right of private defence physical or mental incapacity of he person against whom the right is exercised is no bar.
     There is however no right of private defence :
1. Against an act which does not reasonable cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant or 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.
2. In cases in which there is  time to have recourse to the protection of the public authorities.
3. Nor does the right of private defence extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence(Sec.99)
        The measure of defence must bear proportion to the quantum of force used by the attacker and which it is necessary to repel.  Thus where the accused who was attacked by another with a kirpan succeeded in disarming his opponent by taking away his weapon and showered blows after blows including the serious once on the chest.  It was held that he must be held to have exceeded the right of self defence and was guilty under section 304 Part I of IPC.
      The right of private defence provided by section 97 IPC is a right of protection and not of vengeance or aggression.  An act done in exercise of a right of private defence does not give rise to any right of private defence in return. Case : Mukhtiar Singh v. State of Punjab 1973.
Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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