General Exceptions to Right of Private Defence (Section 96-106)
Section 96 – 106 of the Indian Penal Code (IPC), 1860 states the laws concerning to the right of private defence of person and property.
It is the prime duty of the State to safeguard the life and property of the individuals, but no state, regardless of how large its resources, can afford to delegate a policeman to dog the steps of each scoundrel in the country. Consequently, this right has been given by the state to each citizen of the country to take law into his own hand for his or her safety.
But, there’s no right of private defence when there’s sufficient time to have recourse to the protection of police authorities. This right isn’t dependent on the actual criminality of the person resisted but on the criminal or apparently criminal character of the act attempted, if the apprehension is real and reasonable, it makes no difference that it’s mistaken.
The provisions contained in these sections give authority to an individual to use necessary force against a wrong-doer or attacker for the purpose of protecting one’s own as well as another’s body and property when immediate aid from the State machinery isn’t readily available and in doing so, he’s not answerable to law for his deeds.
Private Defence under Chapter IV of IPC, 1860:
- Section 96 – Things done in private defence.
- Section 97 – Right of private defence of the body and of property.
- Section 98 – Right of private defence against the act of a person of unsound mind, etc.
- Section 99 – Acts against which there is no right of private defence.
- Section 100 – When the right of private defence of the body extends to causing death.
- Section 101 – When such right extends to causing any harm other than death.
- Section 102 – Commencement and continuance of the right of private defence of the body.
- Section 103 – When the right of private defence of property extends to causing death.
- Section 104 – When such right extends to causing any harm other than death.
- Section 105 – Commencement and continuation of the right of private defence of property.
- Section 106 – Right of private defence against deadly assault when there’s risk of harm to innocent person.
Burden of Proof:
In case of right of private defence under Indian Penal Code (IPC) 1860, the burden of proof always lies on the accused. The accused needs to prove his innocence to get benefit from this Chapter.
IPC Section 99 – Act against which there’s no right of private defence:
Section 99 of the Indian Penal Code 1860, lays down the conditions and limits within which the right of private defence can be exercised. This section gives a defensive right to an individual and not an offensive right.
There is no right of private defence:
- Against the acts done by a public servant.
- Against the acts done by those acting under public servant’s authority or direction.
- Where there is sufficient time for recourse to public authorities.
- The quantum of harm that may be caused shall in no case be in excess of harm that may be necessary for the purpose of defence.
The first paragraph in the section applies to the cases in which the public servant is acting in good faith under the colour of his office, even if the particular act being done by him may not be justifiable by law (Dalip v.Emperor, ILR 18 All. 246, p. 252).
The protection extends even to acts which will not be strictly justifiable by law (Kanwar Singh v. Delhi Administration, AIR 1965 SC 871). The law doesn’t protect the illegal acts and the acts committed by a public servant without jurisdiction.
“Act not strictly justifiable by law” doesn’t cover an act which is completely illegal and entirely without jurisdiction. This section applies to acts where jurisdiction is wrongly exercised but not where there’s complete absence of jurisdiction (Sawal Seth v. Emperor, (1933) 34 CrLJ 726).
The protection to public servants isn’t absolute and is subject to restrictions. The acts in either of these clauses must not be of grave consequences leading to apprehension of causing death or of grievous hurt which might deprive one of his right of private defence.
To avail the benefit of those clauses:
- The act done or attempted to be done by a public servant must be done in good faith.
- The act must be done under the colour of his office.
- There must be rational grounds for concluding that the acts were done by a public servant as such or under his authority in the exercise of his legal duty and that the act isn’t illegal.
The Second paragraph is about acts done under the direction of a public servant. It’s not necessary that the doer should be a public servant. This paragraph must be read conjointly with explanation two to Section 99, I.P.C.
The Third paragraph of this section must be read with the first clause of Section 105, IPC. It places a crucial restriction on the exercise of the right of private defence.
The Supreme Court ruled that the right of private defence can’t be exercised when there’s plenty opportunity to have recourse to authorities and there was no need for the accused to have taken the law in his own hand (Lala Ram v. Hari Ram, AIR 1970 SC 1093).
It’s true that recourse to civil or criminal court would take some time, nonetheless the law instructs that if there’s time to have recourse to public authorities, those authorities must be approached first (Parvathi v. State of Punjab, 1968 SC Cr 59).
As per fourth paragraph of this section, the right of private defence is restricted to not inflicting more harm than necessary to inflict for the purpose of defence.
The amount of force necessarily depends on the circumstances of the case, and there’s no protection if the harm is caused by excessive violence relatively unnecessary to the case. The instant it’s exceeded, criminal liability of the alleged defenders begins (Sheo Lachan v. State of U.P., (1971) AllLJ 600).
Further, the right is coextensive with the commencement and existence of a reasonable apprehension of danger to body from an attempt or a threat to commit the offence. It avails only against a danger which is real, present and imminent (Onkarnath Singh v. State of U.P.).
Explanation 1: –
Intended to guard people who may have acted in ignorance of the fact that the person they were dealing with was a public servant. It isn’t proper and advisable, but really necessary that when cops act in discharge of their official duty, they ought to be clothed in their uniform so that the public will always know that they’re police officers acting in the discharge of their duty.
The rule undeniably applied to ordinary cases and one can easily contemplate emergent cases in which police officers might act without being in their uniforms; but in such cases it’s their duty to take steps to make it clear to the person whom they intended to arrest that they’re police officers. If they fail to do so, they can’t validly seek the protection of the court (Emperor v. Abdul Hamim, AIR 1942 All. 74).
Explanation 2: –
An individual isn’t deprived of his right of private defence against an act done, or attempted to be done by the direction of a public servant;
(a) unless he’s aware or has reason to believe that the person doing the act is acting by such direction; or
(b) unless such person mentions the authority under which he acts; or
(c) If he has authority in writing, unless he produces such authority, if demanded. In the case of an individual executing a warrant, the written authority, if demanded, must be produced. If he’s unable to produce the authority, he’s disqualified from enforcing it (Bhai Lal Chowdhury, ILR (1902) 29 Cal. 417).
Self-help is the primary rule of criminal law. The right of private defence is undeniably necessary for the protection of one’s life, property and liberty. Right of private defence is a good weapon in the hand of every citizen to defend themselves. This right isn’t of revenge but towards the threat and imminent danger of an attack. But people can also misuse this right. It’s very difficult for court to find out whether this right had been exercised in good faith or not.
To justify the exercise of this right, the following are to be examined: –
- The entire accident.
- Injuries received by the accused.
- Imminence of threat to his safety.
- Injuries caused by the accused.
- Circumstances whether the accused had time to recourse to public authorities.