Extent of the Right of Private Defence in India – Explained!
To protect one’s own person and property against the unlawful aggressions of others is a right that is inherent in man. A man owes a duty to the society of which he is a member and which duty flows from human sympathy to protect the person and property of others also.
‘It is a noble movement of the heart that indignation which kindles at the sight of the feeble injured by the strong. It is a noble movement which makes us forget our danger at the first cry of distress. It concerns the public safety that every honest man should consider himself as the natural protector of every other.’ (Bentham).
Under Section 97 the right of private defence extends not only to the defence of one’s own body against any offence affecting the human body, but also to defending the body of any other person, and this will include an unlawful arrest also as an unlawful arrest is an offence against human body.
Thus, in State of U.P. v. Niyamat where certain villagers tried during night to rescue a person who was illegally arrested by police and was being carried away and launched attack on police resulting in death of one who was accompanying police, only after one of the constables fired three shots one after another, it was held that the villagers could not be said to have acted in exercise of right of private defence as the act of firing shots caused reasonable apprehension of grievous injury or death in their minds.
The right also embraces the protection of property whether one’s own or another person’s against certain specified offences, namely, theft, robbery, mischief, criminal trespass. The limitations on his right and its scope are set out in the section which follows.
For one thing the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence.
The Supreme Court held in Shaamugam v. State of Tamil Nadu, that the plea of self defence is not tenable as there was no reasonable apprehension of his life from the side of the deceased.
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 was that offence (Section 98).
Thus, the right of private defence exists irrespective of the physical or mental incapacity of the person against whom it is asserted, for example, 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. Take another instance: 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 that 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. Consider one more example. In a certain case, the accused was tried for assaulting his tenant occupying certain land owned by the former. Upon this land fell a tree on account of severe wind.
The tree belonged to the accused but the tenant under misconception that it belonged to him was cutting it. The accused entered on the land of the tenant to remove the wood. But was resisted by the tenant whereupon the accused assaulted him.
It was held that as, but for misconception, tenant’s act would amount to theft it was an offence against which the accused had the right of self-defence and the force used by him was justified under this section.
If, in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk or harm to an innocent person, his right of private defence extends to the running of that risk. (Section 106).
This section tells us when the right of private defence extends to the causing of harm to an innocent person. This section is not applicable in cases where there is a reasonable apprehension merely of the grievous hurt.
Section 106 contemplates an assault which reasonably causes apprehension of death and therefore contemplates exercise of the right of private defence at the risk of harm to an innocent person. There was no evidence that any one of the group of people which was following the accused was armed with any deadly weapon.
Apparently, therefore, even if some persons were chasing the accused and none of them was carrying any arm, it cannot be said that there was reasonable apprehension of death. There was occasion for the accused to exercise his right in the manner in which it would cause less harm to the deceased. The accused was thus not entitled to the exercise of right of private defence of person to the extent of causing death.
Take an example to understand this section. A is attacked by a mob which attempts to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.
The extent of the right of private defence and the limitations in the exercise of this right may be summarised as below: —
(1) There is no right of private defence against an act which is not in itself an offence under this Code. This does not cover the case of exceptions.
(2) The right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence. The right is availed of only against a danger imminent, present and real.
(3) It is defensive and not a punitive or retributive right. In no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, though reasonable allowance should be made for bona fide defender.
(4) The right extends to the killing of actual assailant when there is a reasonable and imminent danger of the attrocious crimes enumerated in the six clauses of Section 100.
(5) There must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm except by inflicting death on the assailant.
(6) The right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to the protection of public authorities.