BY CHARU NAYAK
The state is compelled to remove all kinds of disorder from society and provide social security for the well-being of its citizens. From a layman’s view, security should be of a body and of a property. With the changing socio-economic and political condition of the society, people realized the need for security of the body as well as property from the external threat is very important, which led to the emergence of private defence.
The inherent right of an individual to private defence of his or her body and property must be uplifted in every citizen of the society in order to safeguard fundamental freedom in the community.
Among the general defences in torts, private defence is the most usual and important defence. When a defendant tries to protect his body or property or any other person's property, harms another person by using a reasonable force, under an imminent-danger and where there is no time to report instantly to the authority, it is Private defence.
The use of reasonable force to defend one's person or property is legal. The defendant will not be held accountable for the harm inflicted if he employs force that is necessary for self-defense. Only in the case of self-defense is the use of force justified.
Private defence is also commonly known as “self-defence”, Private Defence is a type of legal defence that may be able to absolve a person of any legal liability if the person hurt or killed another person to defend himself\herself. Only for the purpose of self help and defence, the use of force is justified
The first rule of law is self-help. This right essentially implies that everyone has the right to defend themselves and their property against any external harm. The use of force must be proportionate and justified, and it must be regulated by law. This right is subject to a number of legal resections imposed by law.
For example; If A (wrongdoer) in a dispute with B tries to kill B. B has every right to protect himself if there exists any apprehension of threat or danger to life.
ESSENTIALS OF PRIVATE DEFENCE;
A. Reasonable fear of injury;
A mere fear of injury does not entitle the use of this defence. There must be some concrete facts or basis on which the defence was resorted too. For example shooting at a person because he merely looked suspicious without having any reason to suggest why, would not be a reason; but if he had a pointy budge near his chest and was menacingly advancing towards you threatening you, it would be a plastic gun, as there was a reasonable fear of injury at the time of his advance.
Case law-1 Mohinder Pal Jolly vs State of Punjab;
In the instant case, the accused shot one of his worker who was throwing brickbat in the factory which resulted in the death of the person . It was held that there was no danger or threat present .
B. Use as a last or most viable resort;
Use of force should always be used as the last or most viable resort. For example when there is opportunity to report a trespasser and instead a person engages with herself\himsel, f it would not be a case of this defence. Another example is to hit the trespasser or jump from the 10th floor. This would be a fit case. What if one was on the 1stfloor, there is a chance that the plaintiff may jump and escape, but there is a good chance of fracture to the leg. So even if there is an option available but a very risk one which may pose a good amount of threat to injury itself, the use of private defence will still be permitted.
Case law 2 - Emperor vs. Mammum
In the instant case, the accused on being charged with murder pleaded right of private defence. It was held that they had time to have recourse to the protection of public authority instead of taking the matter in their own hand and brutally assaulting and killing the trespasser who was cutting rice in their field.
C. Existence and persistence of threat;
Not only there should be reasonable basis of the threat but the threat should exist at the time of use of the private defence.
If person X, beats up Y and the next day Y goes upto beat X , it shall not be right to private defence but revenge and y will be held liable to pay damages.
Case law 3- Mannu V. State of U.P
In the instant case, it was held that the right of private defence can’t be used to commit an offence or to take revenge from any person. It is the right for the protection of body and property or another person’s body and property from external danger or threat.
D. Doctrine of proportionality;
Doctrine of proportionality stipulates that the force used to offset the incoming attack should be proportional to or not much greater than the incoming force. For example; if your neighbor has a very jarring voice and creates nuisance by singing loudly every day, it does not entitle you to shoot him. Similarly when a person is advancing to slap you, you don’t take out your samurai sword and chop off his arm with military precision.
Case law 4- Ajodha Prasad Vs State Of U.P
.In the instant case the accused received the information that they will be attacked by some sections of the villagers. They decided to stay together as there is more threat of being pursued if they separated to report it to the police. As a result, they waited together. When they were attacked by the locals, they fought back, and one of the villagers perished in the process. The accused did not go beyond his right to a private defence, according to the court
CONDITIONS APPLICABLE FOR PRIVATE DEFENCE;
The right to private defence is available to a person against whom tort is done and not against the person who is doing the tort.
A right to private defence is available to a person in order to protect his body and property or the body or property of other person.
The right to private defence begins when there is reasonable apprehension of danger and not when there is an actual danger.
The right to private defence continues till the time reasonable apprehension of threats. Once the danger is over, right to private defence also gets over.
The right to private defence is available to the person when there is no rescue to the public authorities.
The right to private defence keeps on fluctuating from time to time. It means it differs from situation to situation.
The right to private defence shall be used in proportionate to the danger, if the right to private defence is used in excessive to the danger than it is not covered under right to private defence and such is liable for using such force.
PRINCIPLES OF PRIVATE DEFENCE;
a) It’s available against the wrongdoer;
The right of private defence is available against all those persons who threaten to cause any acts which are illegal and forbidden by the law.
b) There should be reasonable assumption of threat;
The offences caused by the wrongdoer shall be of that nature which automatically creates the reasonable apprehension of threat and danger in the mind of a person for which he/she can exercise the defence.
In the following case of Darshan Singh vs. State of Punjab & Anr on 15 jan. 2010 rules regarding right to private defence were given-
The basic rule of law is Self-help.
When there is an imminent threat or danger to the life of a person the right of private defence can be exercised.
Reasonable apprehension of threat can also give rise to the right of private defence.
Proportionate force must be used by the person while exercising the right.
The accused is not required to prove the presence of private defence beyond the reasonable doubt.
TYPES OF PRIVATE DEFENCE;
Private defence to body
Private defence to property (movable and immovable)
Body may be one's own body or the body of another person and likewise property may be movable or immovable and may be of oneself or of any other person.
If A and B breaks into the house of Z at night with the purpose of robbery, then Z has the right to defend his body and property with proportionate force and if readily measures are available he should also take the assistance of public official.
Case law 5- Hamsa v. State of Kerela 1989
In this case the accused exceeded the right to priv ate defence as his intention was not just to take defence and save his father who was summoned the accused after receiving a blow in the head but also to take revenge by stabbing the deceased twice.
A) Continuance of private defence ;
1. In case of body; As the person has the reasonable assumption of the imminent danger must use appropriate force to defend his body and property, and if easily available measures are not accessible, he shall seek the assistance of a public official. It lasts until the assumption of threats continues. The danger must be of such nature which should be of imminent threat in the eyes of law
Case law 6- kala singh case
In the instant case, the deceased had a heated argument with the accused and ground and pound him. When the accused was free from the grip of the deceased gave him three serious blows in the head through a light hatchet which resulted in the death of the brute. It was held that the accused exceeded the right of private defence even though the nature and acts of the deceased were violent and aggressive but the force used by the accused was not proportionate and reasonable.
2.In the case of property: the right to private defence begins when a reasonable apprehension arises that threatens to put the property in jeopardy.
The right of private defence of property against theft continues till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
b. The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
c. A person's righ