Private Defence: Principles and Law Explained in BNS/IPC

IPC - Sec. 96-106
BNS - Sec. 34-44

The Right of Private Defence is a crucial legal safeguard provided under the BNS/IPC which empowers individuals to protect themselves and their property in situations where state protection is unavailable or delayed. It is rooted in the fundamental principle of self-preservation, which is recognized as a basic human instinct.

Need and Importance of the Right of Private Defence

A state is primarily responsible for ensuring the safety and security of life, limb, and property of its citizens. However, even a well-organized and resource-rich state cannot provide constant protection to every individual. It is practically impossible to assign a policeman to each citizen or prevent every unlawful act in real-time.

In such scenarios, an individual, driven by the instinct of self-preservation, may be compelled to defend himself and his property using the means available to him. This right serves as a practical necessity in situations where immediate state intervention is not possible.

Basis

The right of private defence is not only a legal right but also a moral and natural one. As Jeremy Bentham rightly observed:

"The right of private defence is an absolute necessity."

This right allows a person to offer effective resistance against unlawful aggression and is considered a highly prized and valuable right.

Principles of the Right of Private Defence

The following principles underline the foundation of this right:

1. Self-Help Is the First Rule of Criminal Law

It is the primary duty of a person to protect himself, and the law recognizes this duty by granting the right of private defence.

2. Self-Preservation Is a Natural Instinct

Every human being is naturally inclined to preserve his life and protect his property.

3. Exercise of the Right Is Conditional

This right arises only when there is no immediate aid available from the state. It is not a substitute for legal enforcement but an exception when legal help is absent or delayed.

4. Force Used Must Be Reasonable

The force used must be proportional to the threat or injury sought to be prevented. It should not exceed what is necessary nor be used for revenge or malice.

While the right of private defence is essential, it cannot be left unrestricted, as it could lead to anarchy or a "might is right" situation. Uncontrolled use of force can cause serious law and order problems. Therefore, the IPC/BNS lays down specific limits and conditions under which this right may be exercised, ensuring a balance between individual safety and public order.

Nature of Right of Private Defence

1. Right of Private Defence Is a Defensive and Not a Punitive Right

The right of private defence is essentially a defensive right circumscribed by the IPC/BNS and it is available only when the circumstances clearly justify it. In Deo Narain v State of UP (1973), it was held that it is exercised only to repel unlawful aggression and not to punish the aggressor for the offence committed by him. It is basically preventive in nature and not punitive.

In Onkarnath Singh v State of UP (1974), the SC laid that a person is not entitled to use the violence that is disproportionate to the injury which is to be averted or which is reasonably apprehended. The moment a defender exceeds it, he commits an offence and is thereby disentitled for the right of private defence.

In Jai Dev v State of Punjab (1963), a piece of land was bought by the accused party in a neighbouring village of Ahrod. Since they were outsiders to the village, the Ahrod villagers treated them as strangers. When the accused, who were armed, were ploughing the field in the disputed land, the villagers of Ahrod, who could not tolerate that strangers should take possession of the land, came armed in large numbers to take possession of the field. The accused party in self-defence of their property caused harm and shot dead one Amin Lal. Immediately thereafter, the villagers of Ahrod who had come to the field ran away and there was no longer any justification for using any force against the fleeing villagers. The moment the property had been cleared of trespassers, the right of private defence ceased to exist. However, the accused shot dead two of the fleeing villagers. While the right of private defence was available in the killing of Amin Lal, the Supreme Court held that it was not available to kill the fleeing villagers who were already some distance away from the field.

2. Right of Private Defence Is Not Available to Aggressors

As seen so far, the right of private defence is to repel any attack on the body or property of a person. No aggressor can claim the right of private defence. In State of UP v Ram Swarup (1974), the Supreme Court held that:

"The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression."

3. Right of Private Defence Is Not Available Against Lawful Acts

The right of private defence arises only in situations where there is an unlawful aggression against the accused, therefore, it cannot be exercised when a person is carrying out a lawful act. In Kanwar Singh v Delhi Administration (1965), a raiding party possessing authority under a section of the Delhi Municipal Corporation Act, seized the stray cattle belonging to the accused. The accused resisted the seizure of the cattle and inflicted injuries on the raiding party. Since, the raiding party was carrying out a lawful act, it was justified in law to seize the cattle, no right of private defence was available to the accused. Accordingly, he was convicted.

In Ram Ratan v State of Bihar (1965), when a person seized cattle on the ground that they were trespassing on his land and causing damage to the crop, it was held by the Supreme Court that he was not committing theft and hence when he was attacked by the owners of the cattle who obstructed him, the person had the right of self-defence against the obstructers. The obstructing party could not have had any right of private defence and cannot rescue the cattle by force as much as the act of seizing the cattle destroying one's crop is not an offence.

Right of Private Defence under Indian Law

The law of private defence of body and property in India is codified in ss 96 to 106 of IPC/ss 34-44. Section 34 of BNS (s 96 of IPC), which declares that 'nothing is an offence which is done in the exercise of the right of private defence', lays down the general rule on the right of private defence.

Subject Matter on Which Right of Private Defence Can Be Exercised

According to s 97 of the IPC/s 35 of the BNS, every person has the right to defend (subject to restrictions under Section 99 IPC/Section 37 BNS):

1. Body (one's own as well as others)

Against any offence affecting the human body.

2. Property (one's own as well as others)

Against:

• Theft
• Robbery
• Mischief
• Criminal trespass
• Attempt to commit any of the above offences.

Limits of the Right of Private Defence

Section 99 IPC/Section 37 BNS stipulates the acts against which the right of private defence does not arise. It sets the limits within which the right of private defence is to be exercised.

Following limits has been prescribed:

1. Act done by or on direction of Public Servant

The first two paragraphs lay down that there is no right of private defence against an act done or attempted to be done by a public servant or an act done or attempted to be done by direction of a public servant, unless it causes reasonable apprehension of death or of grievous hurt, so long as the public servant acts in good faith and in discharge of his official duties. However, explanation 1 and 2 provides that a person is not deprived of the right of private defence in such circumstances unless he has reason to believe that the person doing the act is such a public servant or the person is doing the act on direction of the public servant, as the case may be.

2. Time to have recourse to public authorities

This provision further stipulates that there is no right of private defence in cases in which there is time to have recourse to the protection of public authorities. The restriction is based on the fact that the right of private defence is given to a person to repel an imminent danger to his body and property when the state help is not available to him. Obviously, the necessity of self help disappears when he has ample opportunity to have recourse to state authorities. In such a situation, a person has to approach public authorities rather than taking law into his own hands.

3. Right does not extend to causing more harm than necessary

This provision places a further limitation to exercise the right of private defence. It stipulates that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In Mohinder Pal Jolly v State of Punjab (1979), there was a dispute between the workers and the management over demand for wages. The workers threw brickbats at the factory. The owner of the factory came out and fired a gunshot, killing one worker. The Supreme Court held that the owner exceeded his right of self-defence in killing the worker. Similarly, when an accused was attacked with a stick by the deceased and the accused stabbed him with the knife in the heart, it was held that the accused exceeded his right of self-defence.

In Onkarnath Singh v State of Uttar Pradesh (1974), there was an incident of grappling between the accused party and the complainant party. After some time, the complainant party started fleeing. However, the accused party chased them and made a murderous assault. The Supreme Court held that the two incidents, i.e., the incident of the actual grappling between the parties and the murderous assault thereafter, were two separate incidents both in point of time and distance. The force used was out of proportion to the supposed danger, which no longer existed from the complainant party. The exercise of the right of private defence must never be vindictive or malicious.

Right of Private Defence Against Acts of Lunatics, Intoxicated Persons (Sec. 98 IPC / Sec. 36 BNS)

Ordinarily, the right of private defence arises only against offences, but acts of children, lunatics, intoxicated persons, or those done under mistake are not regarded as offences because of legal incapacity. This provision, however, provides that the right of private defence extends even to such acts, if they would have been offences had they been committed by a person of sound mind and responsibility. The principle is that this right flows from the instinct of self-preservation and not from the criminality of the wrongdoer. Thus, if a drunken man or a lunatic attacks another person or property, the victim is fully entitled to exercise the right of private defence, even though the attacker himself is legally protected from criminal liability.

Right of Private Defence Extends to the Causing of Unavoidable Harm To Innocent Persons (Sec. 106 IPC/Sec. 44 BNS)

This provision provides that when there is a deadly assault on a person which causes a reasonable apprehension of death and his right of private defence cannot be effectively exercised without causing harm to an innocent person, then in such situations, any harm caused to innocent persons is also protected by law. In other words, in the exercise of the right of private defence, if some innocent person is killed or injured, law protects the man exercising the right of private defence by exempting him from criminal liability.

Illustration - A is attacked by a mob who attempt to murder him. He cannot effectively exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by firing he harms any of the children.

Right of Private Defence of the Body (Extends to Causing Death – Sec. 100 IPC / Sec. 38 BNS)

The right of private defence of the body permits causing death or any harm to the assailant, subject to legal restrictions, when the assault falls in any of the following categories:

1. Assault causing reasonable apprehension of death.
2. Assault causing reasonable apprehension of grievous hurt.
3. Assault with intent to commit rape.
4. Assault with intent to gratify unnatural lust.
5. Assault with intent to kidnap or abduct.
6. Assault with intent to wrongfully confine a person under circumstances where recourse to public authorities is not possible.
7. Throwing/attempting to throw acid causing reasonable apprehension of grievous hurt.

Apart from the above situations, the right of private defence of the body extends to causing any other harm (short of death) to the wrongdoer, subject to the restrictions contained in s 99 IPC/s 37 BNS.

Right of Private Defence of Property (Extends to Causing Death – Sec. 103 IPC / Sec. 41 BNS)

The right of private defence of property permits causing death or any harm to the wrongdoer, when the offence relates to:

1. Robbery.
2. House-breaking by night (after sunset and before sunrise).
3. Mischief by fire/explosive on a dwelling house, tent, or vessel used as human dwelling or property storage.
4. Theft, mischief, or house-trespass under circumstances causing reasonable apprehension of death or grievous hurt if defence is not exercised.

Apart from the above situations, the right of private defence of the property extends to causing any other harm (short of death) to the wrongdoer, subject to the restrictions contained in s 99 IPC/s 37 BNS.

Commencement and continuation of the right of private defence of body (Sec. 102 IPC/Sec. 40 BNS)

The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.

The danger or the apprehension of danger must be present, real or apparent. The right of private defence continues as long as such apprehension of danger to the body continues. Thus, the right of private defence is co-terminus with the commencement and existence of a reasonable apprehension of danger to commit the offence.

Commencement and continuation of the right of private defence of property (Sec. 105 IPC/Sec. 43 BNS)

The right of private defence of property commences when a reasonable apprehension of danger to the property commences and continues so long as provided below:

1. The right of private defence of property in cases of theft continues until the offender has effected his retreat with the property, or either assistance of the public authorities is obtained, or the property has been recovered.
2. 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.
3. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass of mischief.
4. The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.