Private Defence under IPC

Section 96 to 106 of the Indian Penal Code 1860 deals with the Right of Private defence of property and body. This right is preventive especially when the state help is not accessible or available at the right time. These provisos of private defence embodied under the IPC provide a person with the right to take necessary actions against an offence to save their body and property when state machinery is not available. In such a case, when there is no other option for a person except to use the right of private defence. In due course, the person will not be held accountable for the actions done to save themselves.

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This Story also Contains

1. What is Private Defence under IPC
2. Essential Elements of Private Defence under IPC
3. Scope of the Right of Private Defence under IPC
4. What is the difference between private defence and self-defence under IPC?
5. Provisions of Private Defence Under IPC
6. Limitations of Private Defence under IPC
7. Conclusion

What is Private Defence under IPC

The term "private defence" describes the use of unlawful means to defend oneself, a third party, or property, or to stop criminal activity. The Indian Penal Code, of 1860, has provisions in Sections 96 to 106 that outline each Indian citizen's right to private defense. Only in cases where there is an immediate threat and no public help or assistance is available may one exercise their right to private defence. There are two types of private defence according to the Indian Penal Code 1860, the right of private defence against body and the right of private defence against property.

Therefore, the State's main responsibility is to keep its people and their possessions safe. However, a person has the right to use force to defend themselves against harm or injury in circumstances where there is an urgent and inevitable threat and no public aid is available.

Essential Elements of Private Defence under IPC

Expectations of Injury

When there is a realistic anticipation of harm or risk to oneself, another person, or property, one has the right to private defence. The threat needs to be real and not just hypothetical or speculative.

Commission of an Unlawful act

The use of private defence is limited to responding to illegal actions. The claimant must be facing certain listed offences as specified by the IPC, such as assault, robbery, housebreaking, mischief, or criminal trespass.

Use of Force

When defending oneself, one must employ force in proportion to the threat. It shall not go above and beyond what is deemed reasonably required to fend off the attack or stop damage. To protect others or themselves, defenders should try to do as little harm as possible.

Lack of choice

When there is no realistic chance to request protection from public authorities or when circumstances prevent prompt legal response, private defence is acknowledged.

Existence of Threat

Private defence is allowed as long as there is a threat or risk. The right to private defence expires when the threat has passed, and using force after that may no longer be warranted.

Not using excessive force

When defending oneself, one should only use as much force as is required to fend off an attack. If the defender does more injury than is reasonably necessary, they could be held liable.

Scope of the Right of Private Defence under IPC

According to Section 97 of the Indian Penal Code, every citizen is entitled to protect their own body, the body of another, and their property, whether it is mobile or immovable, against crimes including larceny, theft, robbery, and felonies, as well as attempts to commit such crimes. However, Section 99 of the IPC outlines specific restrictions that apply to this privilege.

The first principle is self-help, which denotes a person's obligation to assist oneself. Following it is a social obligation that results from empathy to safeguard other people and their belongings.

According to Section 98 of the Indian Penal Code, every individual has the same right to private defence against an act that they would have if it were a crime in the real world if the person performing it is too young, ignorant, drunk, or misguided to be considered an offence.

Furthermore, per Section 106 of the IPC, a defender's right to private defence also includes accepting the risk of doing so if they reasonably suspect a death-threatening attack and are in a position where using that right could endanger or harm an innocent party.

What is the difference between private defence and self-defence under IPC?

Sections 96 to 106 of the IPC deal with the legal aspects of private defence. Self-defence is part of private defence. This article discusses private defence under the Indian Penal Code.

Provisions of Private Defence Under IPC

Section 96 of IPC- Things Done in the Right of Private Defence

According to this provision, nothing is an offence if it is done in private defence. The Indian Penal Code's Section 96, which describes the right to self-defence, is qualified by Section 99 and is not unqualified. According to Section 99, causing more harm than is necessary for defence is not covered by the right of private defence.

The law does not support the use of force that is excessive or beyond what is necessary in the circumstances, even though it does not expect someone whose life is in danger to accurately gauge the amount and kind of force used in their defence.

The person claiming the right to private defence is responsible for providing proof of it. Even though they haven't specifically pled it, an accused person may still be found not guilty based on their right to a private defence. Private defence is not an offence; rather, it is a defensive action. It can't be used as an excuse for hostility. To ascertain whether the accused behaved within the bounds of this right, each case necessitates a thorough analysis of the relevant facts and circumstances.

Important cases under this section

The Thangavel Case

The Thangavel case highlights that contemporary jurisprudence does not subscribe to the widespread proverb or adage that "necessity knows no law." Although everyone has the intrinsic right to self-preservation, this right cannot be exercised in a way that infringes on the rights of others. Limits placed by society on the battle for survival keep people from unfairly attacking defenceless people.

In the case of Kamparsare v. Putappa

The court determined that a bystander who chased and assaulted a youngster in the street, creating a cloud of dust, did not commit any crime in the Kamparsare v. Putappa case. The act was deemed by the court to be an exercise of the private defence right.

Section 97 of IPC- Private Defence of Property and Body

Every person has the right to protect their own body or the body of another against any offence injuring the human body under Section 97 of the Indian Penal Code. In addition, they are entitled to defend their immovable or mobile property from criminal trespass, theft, robbery, and mischief.

The right to self-defence is restricted to what is essential and should not go beyond what is required to repel violence. The individual using this privilege must reasonably fear that the offender would harm them.

When an offence is committed or attempted against the person exercising this right, or against any other person, the right to private defence may be used. The defence of one's own body and property is covered by the right of private defence, as is the defence of another person's body and property.

But only in cases when the trespasser hasn't yet completed their task does the right of the genuine owner to remove them from the property exists. The law requires the rightful owner to take legal action to remove the trespasser from the property if they have successfully taken possession and are aware of this.

In the case of Parichhat v. State of MP

In this case, After the deceased attacked their father in the head with a lathi, it was determined that the accused had overreached their right to private defence when they struck him in the chest with a ballam.

Section 98- Private Defence Against a Person Committing an Act Who is of Unsound Mind

According to Section 98 of the Indian Penal Code, every individual has the same right to private defence against an act that they would have if it were considered an offence if it were not deemed to be so for a variety of reasons, including youth, lack of understanding maturity, intoxication, or any misconception on the part of the person committing the act.

According to Section 98, one's ability to exercise the right to private defence against an individual does not have to be hindered by their physical or mental state. Regardless of an attacker's intention or mental state, they are all entitled to the right to private bodily defence.

This indicates that the right to private defence can still be used even in cases when an attacker is protected by a legal exception or exemption due to the danger and risk their actions entail. This guarantees that, regardless of an attacker's legal status or exemption, the right to private defence is meaningful and may be used when there is an actual threat from them.

Section 99 of IPC- Act where no Right of Private Defence Exist

Even though a public servant acting in good faith under the guise of their official duty may not have been properly justified by law, the right to private defence under the IPC does not apply when there is no credible fear of death or serious harm.

Similarly, even though the order may not have been precisely legal, there is no right of private defence when the act is carried out or attempted under the supervision of a public official working in good faith and representing their authority. When there is enough time to seek the protection of the public authorities, the right to private defence cannot be used. It is crucial to remember that exercising one's right to private defence should not lead to greater damage than is required for defence.

Conditions under which there is no Rights of Private Defence

Here are the conditions under which there is no right to use the provisions of Private Defence under IPC-

• Actions done by Public Servants

• Actions done under the authority of a Public Servant

• When there is a choice of using the state machinery

• If the actions or harm exceeds the limit of what was necessary for defence

Moreover, the right of Private defence for a Public Servant is not absolute and there are certain conditions under which the right will not apply. They are-

• The actions of a Public Servant should be in good faith

• The actions done by a Public Servant should be according to the Law

• The actions of Public Servants should be under the authority of the office.

The activities themselves must not be unlawful, and there must be good reason to assume that they were carried out by public servants or others acting under their direction in the legal performance of their duties. The applicability of this section is contingent upon good faith; infallibility is not required; instead, proper care and prudence, as specified by Section 52 of the Indian Penal Code, are required.

Section 100 of IPC- The Right of Private Defence of Body Leading to Death

In certain situations, the right to private defence of the body permits the willful infliction of damage or death upon the attacker. Among these situations are:

• When the victim has apprehension of death

• When the Victim has apprehension of Causing Grevious Hurt

• An act of committing Rape

• An act of Gratifying Unnatural Lust

• An act of kidnap or abduction

• It is an act of wrongfully confining a person and there’s no way of seeking help from state machinery

Essentials Under Section 100 of IPC

• The individual utilising their right to self-defence must not have been at fault for starting the confrontation.

• There must be a serious risk to one's life or serious injury.

• There must be no logical or safe way to withdraw or escape.

• There must be a compelling reason to kill the attacker.

In the case of Yogendra Morarji v. State

In this decision, the Supreme Court addressed the scope and restrictions of the body's right to private defence. The court emphasized that an individual confronted with impending danger or severe physical damage must have no other safe or rational way to flee or retreat than by employing force to eliminate their attacker.

This feature has led to uncertainty in the law since it subtly implies that one should think about retreating rather than using force to defend oneself. This retreat theory is consistent with the English common law doctrine of self-defence, which emphasizes the right to retreat to avoid committing a crime against oneself, as courts have traditionally done.

Section 101 of IPC- Right of Private Defence extends to Causing Harm other than Death

The right to private defence does not include the ability to kill the attacker if the offence does not fit into any of the categories mentioned in the section above. It does, however, allow for various forms of harm to be inflicted upon the attacker within the limits given in Section 99 of the Indian Penal Code, excluding death.

In the case of Mohinder Pal Jolly v. State of Punjab

The owner of the plant, who had shot and killed a worker when the workers threw brickbats, was not entitled to the protection of the right of private defence, the court ruled. The factory owner's claim to the right of private defence was rejected by the court, which found that there was no realistic fear of death or serious injury in that circumstance.

Section 102 of IPC- Continuance and Commencement of Private Defence of Body

Even if the crime has not yet been committed, the IPC's right to private defence of the body is activated when there is a legitimate fear that the body may be in danger as a result of an attempted or threatened crime. This right is in force as long as there is a continuing fear of harm. But, the fear of danger needs to be grounded in reality rather than fantasy. It is crucial to remember that there must be an actual attack for there to be a right of private defence; additionally, the risk must be real and urgent.

Section 103 of IPC- Private Defence of Property Leading to Death

If the offence that gives rise to the exercise of this right fits into specific categories, the right of private defense of property permits the voluntary infliction of death or injury on the wrongdoer, subject to the restrictions outlined in Section 99. These include theft, mischief, or house trespassing under circumstances that reasonably cause fear of death or great harm if the right of private defence is not exercised, and robbery, housebreaking at night, mischief by fire committed on a building, tent, or vessel used as a human dwelling or for property storage.

In the case, Jessa Singh v. State of Haryana

In this case, The Supreme Court made it clear that killing someone for trespassing on public property is not covered by the right of private property defence. Section 103 only considers home invasions that are reasonably likely to result in death or serious injury as crimes.

Section 104 of IPC- Right of Private Defence of Property Causing Harm other than Death

Section 104 of the Indian Penal Code (IPC) states that theft, mischief, or criminal trespassing but not any of the other offences listed in Section 103 are the offences that give rise to the exercise of the right to private defence. Causing death is outside the purview of the right to private defence. It does, however, extend to harming the wrongdoer in ways other than death, subject to the limitations outlined in Section 99.

In the case, V.C Cheriyan v. State

A road had been illegally built through a church's private land by three deceased people and others. They were the subject of an ongoing criminal case. The accused, who were connected to the church, blocked the road with barricades.

The accused fatally stabbed the three deceased individuals when they tried to take down these barriers. The Kerala High Court recognized the church members' right to self-defence, but it did not grant them the authority to murder defenceless people whose actions did not violate Section 103 of the IPC.

Section 105- Continuance and Commencement of Private Defence of Property

When there is a legitimate fear that the property is in danger, the right to private defence of that property is activated. Depending on the type of offence being committed, this right has varying durations.

It is crucial to remember that you can only use your right to private property defence if you have no other choice except to ask for help from the government. Furthermore, the right of private defence to defend the property is forfeited by the genuine owner once a trespasser has effectively gained ownership of the contested territory. When it comes to defending property they are not legally in control of, trespassers are not entitled to a private defence.

Section 106 of IPC- Private Defence and Assault when There is Risk of Harming an Innocent Person

The clause that is depicted in the example you provided makes it clear that an individual who is being attacked by a mob and reasonably fears for their life has the right to private defence, even if using that right could endanger innocent bystanders. To defend oneself, the defender in this situation is permitted to take the chance of hurting those innocent people.

This clause eliminates any uncertainty or reluctance the defender might have about using their right to private defence in situations where doing so could endanger innocent people. It guarantees that the defenders can take the required precautions to keep themselves safe, even in cases where there may be a risk to those who are not part of the attack.

Limitations of Private Defence under IPC

When the person claiming self-defence started or provoked the incident, the right to private defence cannot be used to support the use of force. The right to private defence is not applicable in certain circumstances. Moreover, let's say someone goes beyond what is appropriate in self-defence and inflicts more hurt or damage than is required to fend off the attack. If so, they might be prosecuted for using undue force.

It's also critical to remember that someone defending themselves against an attacker may be held accountable for any harm they inflict on a third party they did not assault in the first place. Similarly, someone may be held accountable for using excessive and unreasonable force if they use lethal force when it isn't necessary to fend off the attack.

Conclusion

This article describes the Right to Private Defence Given under the Indian Penal Code 1960. Sections 96 to 106 of the IPC deal with the Right of Private Defence. The main object of Private defence is to save a person from any crime against a body or property when there is no assecciility to the state machinery to protect themselves from such harm. Also, it is given in this section that the intensity of the right to Private defence should be equivalent to the force used by the offender.