PRIVATE DEFENCE – A HUMAN RIGHT
Private defence as a name itself suggests the defence or any act of defence which is taken against someone to protect oneself or once own property or once own body. An English legal luminary, Jeremy Bentham once opined “this privilege of defence is completely essential. The cautiousness of magistrates can never compensate for the watchfulness of every person on his own behalf. The dread of the law can never limit awful men so efficaciously as the dread of the aggregate to individual resistance. Remove this privilege and you become, in this manner, the associate of ever single awful man”. According to his saying Private defence is essential privilege a man can get as it won’t be possible for any magistrate to compensate for person’s own awareness. Moreover private defence is a defence which derived its importance from natural principle of law. A principle of law which gives importance to human’s basic requirement of life is termed as Human Right. This article show how the right of private defence is essencial for person in day to day life where it is impossible to give personal protection to each and every person by the state. Futher article will deal with provision of Indian Penal code concerned with right of private defence.
Every offence in the view of private defence is termed as general exception under Indian Penal Code,1860. Section 6 of the code reads as throughout the every definition of an offence, every penal provision and every illustration shall be understood subject to the exception contained in chapter 4. Section 96 to 106 defines private defence as of justifiable nature which means offence done is view of protecting own body or own property is not term as offence and at the same time offender will be free from all the allegation of offence. But the burden of proof in these case lies on the accused person , the person have to proof that the act amounts to an offence is the exercise of the right of private defence as for both bodily offence or property offence. Under section 105 of evidence act 1872, the burden of proving the existence of circumstances bringing the case within any of the general exception is upon the accused person. Where the privilege of private defence is argued , the must be sensible or plausible.
Section 96 simply says that nothing is an offence which is done in the exercise of right of private defence. While articulating the right of private defence, the person must have the reasonable apprehension of receiving hurt, this is basic ground on which one can claim the right of private defence.
In Arjun v State of Maharashtra (AIR 2012), the supreme court held that injury which is inflicted by a person exercising the right should be commensurate with the injury with which he is threatened. Otherwise by the use of this right the wrongdoer (accused) can do away anything without any reasonable cause of fear of death or grievous hurt that might have full measure of right of private defence.
In other judgment of Ranjitham v. Basavaraj (AIR 2011), it was held that right of private defence cannot be weighted in a golden scale and even in absence of physical injury, the right can be upheld by the court provided there is reasonable apprehension of life or reasonable apprehension of grievous hurt to a person.
So these two cases show that reasonable apprehension of life or grievous hurt plays an important role while granting the right of private defence. Section 97 speaks that the right is applicable to both body as well as property but again reasonable apprehension is important in both the situation. In short this section tells the applicability of the right of private defence. The next section 98 talks about the availability of the right against the act of a person who is of unsound mind, the want of maturity of understanding or who is intoxicated or having misconception on the part of that person, in all these cases the person has the same right as he have if the act is done by a normal person. Although the act done by such person (unsound, intoxicated, immature or under misconception) will not be consider as offence under section 82, 83 or 85.
Every case of right of private defence is to be read with section 99. This section is considered as the exception of the right, under the provision of the section it is said that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt , if done or attempted to by a public servant acting in good faith under the colour of his office or done under the direction of public servant ,thought act may not be justifiable by law. Good faith here means the act done with due care and attention. Nevertheless, the good faith is an issue of certainty and depend on the circumstances of the case. Under the colour of his office mean lawful and bonafide activity. It does not include the cases in which person using his right of private defence has idea or has no reason to believe that person doing his act is such police officer or done under police officer’s direction or unless police officer does’nt produce any written authority if demanded.
Secondly, in the case, in which there is time to have recourse to the protection public authority. It means if a person has enough time, so that he could take the protection under public authority, he don’t need to take any action of private defence if he do so then it won’t be possible for him take the defence of privae defence as it would be justify that he has time and then also he does an act hence it is not done under any apprehension of death or grievous hurt.
Thirdly, in no case the right of private defence can extends to the inflicting more harm than it is necessary to inflict for the purpose of defence.
In Munney khan v. State of M.P (AIR 1971), the court held that the harm caused must be proportionate or has reasonable apprehension of hurt, grievous hurt and death to the person’s life or damage to the property. Further all the section from 96 to 106 all should be read together. The right is essentially a defensive right circumstanced by the statute available only when the circumstances clearly justify it. The right is defensive and neither vindictive nor retributive.
According to Orissa high court, the right of self defence has been granted to a citizen to protect himself by effective self resistance against an unlawful aggressor and no man is expected to fly away when he is being attacked. He can fight back and when he apprehends that death or grievous hurt would be caused his his adversary, he can retaliate till adversary is vanquished.
RIGHT EXTENDS TO CAUSE DEATH
Section 100 of code deals with the situation where the right of private defence of body extents to causing the death. Under the restriction mentioned in section 99, the voluntary causing of death can be termed as right of private defence if the offences are of any description of :-
Assault having reasonable apprehension to cause death.
Assault having reasonable apprehension of causing grievous hurt.
Assault with the intention of committing rape.
Assault with the intension of gratifying unnatural lust.
Assault with the intention of kidnapping or abduction.
Assault with the intention of wrongfully confining a person.
An act of throwing or administering acid or attempt to throw acid.
The last provision of throwing acid has been included by Justice Verma committee through the criminal law amendment act, 2013. If a person has thrown acid on, or administered acid to, another person the court shall presume that such an act has been done with the intention of causing or with the knowledge that such an act is likely to cause such injury as mentioned in section 326A of Indian Penal Code. According to section acid includes any substance which has acidic or corrosive or burning nature that is capable of causing bodily injury leading to scar or disfigurement temporary or permanently. The section 100 provides that there should be a sensible apprehension of grievous hurt so acid like corrosive substance is effectively secured under the second provision of section 100.
This right generally commenced as soon as reasonable apprehension of danger to the body arises from attempt or from threat to attempt the offence and it continues as long as such apprehension of danger to the body continues.
Section 103 of the code deals with the situation where the right of private defence of property extends to causing of death. Under the restriction mentioned in section 99 the voluntary causing of death can be termed as private defence when the offence are of the description as mentioned below:-
House breaking by night
Mischief by fire committed on any building, Tent, or the vessel used for human dwelling
Theft, mischief or house trespass having the reasonable apprehension of death or grievous hurt
The right under this section commenced when a reasonable apprehension of danger to the property commence whereas continues differently in all the above mentioned situation in case of theft right continues till offender retreat the property or either the assistance to public authority is obtained, in case of robbery continues as long as the offender cause or attempt to cause person death or hurt or wrongful restraint or its fear, in case of criminal trespass or mischief continue as long as offender continue in the commission of criminal trespass or mischief, in case of house breaking by night continue as long as house trespass which has been begun by house breaking continues.
RIGHT EXTENDS TO RUNNING OF THE RISK
Section 106 of the code deals with the case where right of private defence is against deadly assault and at the same time there is the harm to innocent person, in such situation if the defender cannot eventually exercise the right without the risk of harm to innocent person, he can run of to that risk.
So all the above provision tells about the legal concerned of right where as apart from this common rules of torts also provides for the right of private defence. As it is the obligation of the state to protect individual’s life similarly individual has also obligation to protect their own life with the help of right of private defence. The right is not absolute we seen in above discussion that the right is subject to the restriction which keep a balance between both individual and society. The privilege of private defence of both body and property begins when a sensible dread of threat initiated.
Even UN Charter has also recognize the right of private defence in international law. Article 51 of the UN Charter states the following:
Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.
So through above discussion it has been clear that private defence or self defence is the rule of criminal law. In additionally it puts down a few limits that should be pursued to benefit this right. The power utilized must not exclusively be fundamental to stay away from assault yet in addition proportionate to the damage undermine. The absence of right of private defence , can lead to the society in which every person have the fear of losing his life or property at any time and at the same time they can’nt do anything to protect themselves from damage. Thus the right of private defence is highly prized gift which a country can grant to its citizen.
Indian penal code,1860 bareact
Indian evidence act, 1872 bareact
www.un org .com
Nityanand Pasayat v. State of Orissa (1989 CrLJ 1989)
By Rashi Garg
IMS law college, Noida