The Right of Private Defence under Indian Penal Code | Criminal Law for Judiciary Exams PDF Download

What is Private Defence?

• The concept of private defence involves taking reasonable action to protect oneself or one's property. It can be used as a defence in legal actions. This right extends to defending not only oneself but also family members and others from unlawful force.
• Under the Indian Penal Code (IPC), Sections 96 to 106 address the Right of Private Defence of person and property. These sections allow individuals to use necessary force to protect themselves and others in situations where immediate assistance from authorities is not available.
• Section 97 of the IPC specifies that the right to private defence includes the right to defend one's body and property. It is important to note that physical or mental incapacity of the attacker does not negate this right.
• However, there are limitations to the right of private defence. For instance, the right does not apply in situations where public authorities can be contacted for help, or if the force used exceeds what is necessary for defence.
• Sections 100, 101, 103, and 104 further define the circumstances under which the right of private defence can extend to causing harm, including death, in defence of oneself or property.

Ingredients for Private Defence

The key requirements for private defence, as outlined in Section 97 of the IPC, include:

• Every person has the right to private defence.
• There must be a genuine fear of harm to one's body or property.
• When immediate help from public authorities is not available.
• When an offence like theft, robbery, mischief, or criminal trespass is being committed.

Nature of Right of Private Defence

• Definition: The right of private defence, as elucidated in the case of Shankar Balu Patil v. State of Maharashtra, is characterized as a preventive measure rather than an offensive, retributive, or punitive action. It is a right of warding off imminent danger that must be real and potent, necessitating a counterattack when all other means of averting the danger are inadequate.
• Criteria for Justification: To validate the exercise of the right of private defence, the following aspects need to be evaluated:
  • The entire incident: Understanding the full context of the situation leading to the defensive action.
  • Injuries received by the accused: Assessing the harm suffered by the individual invoking the right of private defence.
  • Imminence of threat to safety: Determining the immediacy and severity of the danger posed to life or property.
  • Injuries caused by the accused: Examining the harm inflicted by the individual invoking the right of private defence in response.
  • Circumstances allowing recourse to public authority: Considering whether the accused had the opportunity to seek help from law enforcement or other public authorities.

For example, if an individual is faced with a situation where their life or property is under immediate threat, they may be justified in using necessary force to protect themselves or others. This right extends not only to the defence of one's own property but also to thwarting any attempt to commit an offensive act against property.

Burden of Proof

• Section 96: Things done in private defence
  • Actions in self-defense are not considered offenses.
  • The accused must prove they acted in self-defense, even if not explicitly claimed.
• Section 97: Right of private defence of body and property
  • Every person has the right to defend their body and property against specific offenses.
  • Two parts: defense of person and defense of property.
  • Extends to defending others' body and property as well.
• Section 98: Right of private defence against a person of unsound mind, etc.
  • The right of self-defense applies regardless of the mental state of the attacker.
  • One can defend against attacks, even if the attacker is legally protected.
• Section 99: Acts without the right of private defence
  • Protects public servants acting in good faith under their duties.
  • States instances where private defense is not allowed.
• Section 100: Extending private defence to causing death
  • Allows causing death in specific threatening situations.
  • Conditions must be met to justify lethal self-defense.
• Section 101: Harm short of death
  • Permits causing harm short of death in defense of the body.
  • Subject to restrictions mentioned in Section 99.
• Section 102: Commencement and continuance of the right of private defense
  • The right of self-defense begins with the threat and continues as long as the danger persists.
• Section 103: Extending private defence of property to causing death
  • Allows causing death in defense of property in specific scenarios.
  • Subject to restrictions provided in Section 99.
• Section 104: Extending private defence to causing harm short of death
  • Permits causing harm below lethal force in defense of property.
  • Exceeding this right can lead to legal consequences.
• Section 105: Commencement and continuance of the right to private defence of property
  • The right depends on the reasonable apprehension of danger.
  • The defense continues until the threat is eliminated or authorities intervene.
• Section 106: Right to private defence against a deadly assault
  • Allows taking risks to defend against deadly assaults when necessary.
  • Includes situations where defending might endanger others.