Right of Private Defence & Burden of Proof | Legal Reasoning for CLAT PDF Download

Section 96: Things Done in Private Defence

"Nothing is an offence which is done in the exercise of the right of private defence."

Doctrine of 'Right of Private Defence'

The doctrine of private defence is founded on the following principles:

1. A private citizen whose life is threatened by a grave danger need not wait for State aid; however, where aid is available, it must be obtained.
2. The right of defence is protective or preventive, not punitive(i.e., not meant for punishing the aggressor).
   • Punitive measures may result from the exercise of the defence.
   • It is not a right of private offence. The right to punish lies with the State.
   • If after sustaining a serious injury there is no apprehension of further danger, the right of private defence is not available.
3. The right cannot be used for self-gratification, satisfying one’s ego, or for malicious or sadistic urges.
   • The act of private defence must not be deliberate.
   • It is available only in cases of imminent peril and for those who act in good faith.
   • It cannot be used as a shield to justify an act of aggression.
4. The right must be exercised when there is:
   • Real and immediate threat (not imaginary or remote).
   • Reasonable apprehension of such a threat.
   • The term reasonable implies what any common person in that situation would apprehend.
5. The apprehension must be reasonable, not fanciful, and the danger must be present and imminent, not remote or distant.
   • Example: X cannot shoot his enemy Y, who is at a great distance, even if Y is armed with a sword, as Y has not yet attacked X.
6. The right of private defence begins as soon as there is a reasonable apprehension of danger to the body from an attempt or threat to commit the offence, even if the offence has not been committed yet.
   • This right continues as long as the apprehension of danger persists.
   • It is lawful to repel force in self-defence before sustaining a serious injury.
7. The measures employed in defence must be relative to the danger ahead, i.e., violence must be proportionate to the injury or threat.
   • However, a person is not expected to calculate the exact proportion of force to be used in a high-stress situation.
8. The right of defence ends when the necessity for it ends.
   • Example: A person exercising private defence need not chase a fleeing attacker or go to another’s house to chastise them for a past action.
9. The law does not require a person to avoid exercising self-defence by running away from an assailant.
10. The law does not expect a person to weigh arguments for and against an attack "in golden scales."

Situations Where Right of Private Defence is Not Available:

1. Aggressors cannot claim the right of private defence:
   • An aggressor creates a danger to his own life and cannot avail this right.
2. No private defence against private defence:
   • There is no right of private defence against any act that is not itself an offence.
3. Free fights:
   • In cases of mutual fights without identifying the initial aggressor, neither party can claim the right of private defence. Each individual is responsible for their own acts.

Burden of Proof

According to Section 105 of the Indian Evidence Act, 1872, the burden of proving the exception lies with the person claiming the benefit (i.e., the accused).

• It is well established that even if an accused does not plead self-defence, the court can consider such a plea if it arises from the material on record.

Section 97

"Every person has a right (subject to restriction in Section 99) to defend his own body or that of any other person against any offence affecting the human body."

Section 98

"Every person has the right of private defence of the body against an act, which would otherwise be a certain offence, but is not that offence by reason of the doer being of unsound mind, a minor, an intoxicated person or a person acting under misconception of fact."

This section lays down that the physical or mental capacity of the person against whom the right is exercised is no bar. In other words, the right of private defence exists against all attackers—whether with or without mens rea.

Example:
If 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.

Section 99: Restrictions on the Right of Private Defence

This section places four restrictions on the right of private defence:

• No right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done or attempted to be done by a public servant acting in good faith under the colour of his office, even if that act may not be strictly justifiable by law.
• Similarly, no right of private defence exists when the act is done under the direction of a public servant, even if that direction may not be strictly justifiable by law.
• No right of private defence is available in cases where there is time to have recourse to the protection of public authorities.
• The right of private defence does not extend to inflicting more harm than is necessary for the purpose of defence.

Explanation 1 and 2:
A person is not deprived of the right of defence against an act of a public servant unless he knows or has reason to believe that the attacker is a public servant or is acting under the direction of a public servant.

Conditions to Exercise Right Against Public Servants:
The right of private defence of the body/property can be exercised against a public servant only in the following cases:
a. When the act of the public servant reasonably causes apprehension of death or grievous hurt.
b. When the public servant does not act in good faith under the colour of his office.
c. When the person exercising the right does not know or have reason to believe that the attacker is a public servant or is acting under the direction of a public servant.

Extent of the Right (Proportionality):
The measure of self-defence must always be proportionate to the quantum of force used by the attacker.

• Factors such as the nature of the attack, the danger apprehended, the imminence of danger, and the necessity of retaliation are crucial in deciding whether the right has been exceeded.

Section 100: When the Right of Private Defence Extends to Causing Death

The right of private defence of the body extends (subject to restrictions in Section 99) to the voluntary causing of death or any other harm to the assailant in the following cases:

• An assault causing apprehension of death as the consequence.
• An assault causing apprehension of grievous hurt.
• An assault with the intention of committing rape.
• An assault with the intention of gratifying unnatural lust.
• An assault with the intention of kidnapping or abduction.
• An assault with the intention of wrongful confinement, under circumstances reasonably causing apprehension of inability to have recourse to public authorities for release.

Section 106:
In cases where the defender cannot exercise the right without risking harm to an innocent person, they may take that risk.
Illustration:
If A is attacked by a mob attempting to murder him, and A cannot exercise his right of private defence without firing on the mob and harming young children mingled with it, A commits no offence if he harms the children.

Conditions for Taking a Life in Self-Defence

• The accused must be free from fault in bringing about the encounter.
• There must be an impending peril to life or great bodily harm, either real or apparent, creating an honest belief of existing necessity.
• There must be no safe or reasonable mode of escape by retreat.
• There must be a necessity for taking life.

Section 101: Causing Harm Other Than Death

In other cases than those mentioned in Section 100, the person exercising the right may cause any harm other than death.

Section 102: Commencement and Continuance of the Right of Private Defence

The right of private defence of the body commences as soon as there is a reasonable apprehension of danger to the body arising from an attempt or threat to commit the offence, even if the offence has not been committed yet.

• This right continues as long as such apprehension of danger persists.

Acts Against Which Right of Defence of Property Can Be Exercised

Every person has the right to defend the property (whether movable or immovable) of himself or of any other person:

• Against theft, robbery, mischief, or criminal trespass, or any act which is an attempt to commit theft, robbery, etc. (Section 97).
• Against the act of a lunatic, a minor, or an intoxicated person, or a person acting under a misconception of fact (Section 98).

Illustration:
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 this 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 this misconception.

Acts Against Which There Is No Right of Private Defence of Property

Section 99: Lays down the limitations to the right of private defence of property:
a. There is no right of private defence of property against an act which does not reasonably cause the apprehension of death/grievous hurt, if done by (or by the direction of) a public servant acting in good faith under colour of his office.
b. There is also no right in cases in which there is time to have recourse to the protection of the public authorities. Further, the right of private defence in no case extends to inflicting more than what is necessary for the purpose of defence.

Right When Commences and How Long It Continues (Section 105)

The right commences when a reasonable apprehension of danger to the property arises. The right continues:
(i) Against theft, till the offender has affected his retreat with the property, or the assistance of the public authorities is obtained, or the property has been recovered.
(ii) Against robbery, as long as the offender causes (or attempts to cause) to any person death, hurt, or wrongful restraint, or the fear of instant death/hurt/personal restraint continues.
(iii) Against criminal trespass or mischief, so long as the offender continues in the commission of such offence.
(iv) Against house-breaking by night, as long as the house-trespass continues.
Thus, where a person followed a thief and killed him in the open, after house-trespass had ceased, it was held that he could not plead the
right of private defence.
The right of private defence of the property commences and continues as long as the danger lasts. The extent to which the exercise of the right will be justified depends not on the actual danger, but on whether there was reasonable apprehension of such danger.

When the Right Extends to the Causing of Death (Section 103)

Section 103 enumerates the cases in which the right extends to justifiably causing the death of the wrong-doer, viz.:
(i) Robbery.
(ii) House-breaking by night.
(iii) Mischief by fire to any building, tent, or vessel used as a human dwelling or as a place for the custody of property.
(iv) Theft, mischief, or house-trespass under such circumstances as may reasonably cause an apprehension that death/grievous hurt will be the consequence if such right of private defence is not exercised.

Example Application (Section 97)

• Every person has the right to defend the property of himself or of any other person against theft. Thus, the tenant, L, was within his rights to exercise the right of private defence. However, as J was committing a theft without reasonably causing an apprehension that death/grievous hurt would be the consequence (Sections 103, 104), L had no right to cause the death of J.
• According to Section 105, the right of private defence of property against theft continues till the offender has affected his retreat with the property.
• Further, under Section 99, there is no right of private defence when public authorities can provide protection. When J entered his house, the retreat had occurred, and thus L cannot exercise the right of defence here. As J's house was known, there was sufficient time to inform the police. Thus, L's right of defence also ceases here.