Indian criminal law grants a right of private defence of property to every person. The exact provisions of substantive law, that is, the Bharatiya Nyaya Sanhita (BNS), granting this right are reproduced below:

Section 34 BNS

• Nothing is an offence
  • which is done in exercise of right of private defence

Section 35 BNS

• Subject to certain restrictions
• Every person has a right
  • to defend property
  • of himselfor of any other person
• against any act
  • which is an offence of theft, robbery, mischief or criminal trespass or
  • which is an attempt to commit these offences

Basis of the right of private defence

• This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence

Scope of the right of private defence

• Section 35 BNS recognises the right of a person to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.

Rule of retreat

• It is now well settled that the rule of retreat which common law courts espoused is not relevant under the BNS. In India there is no rule which expects a man to run away when confronted with a situation where he can exercise his right of private defence.

Legal provision: Section 37(1) BNS

(a)

• There is no right of private defence against an act
  • which does not reasonably cause apprehension of death or grievous hurt
• if done by a public servant
  • acting in good faith under colour of his office
  • though that act may not be strictly justifiable by law

(b)

• There is no right of private defence against an act
  • which does not reasonably cause apprehension of death or grievous hurt
• if done by directionof a public servant
  • acting in good faith under colour of his office
  • though that direction may not be strictly justifiable by law

(c)

• There is no right of private defence
  • where there is time to have recourse
  • to protection of public authorities

Extent of right of private defence

Legal provision:  Section 37(2) BNS

• Right of private defence does not extend
  • to inflicting more harm than necessary
  • for purpose of defence

ANALYSIS

How much force can be used to repel an act of specified wrong-doing? How to decide   whether the force used was excessive?

• In moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave wrong-doing to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful wrong-doing.
• At such moments an average human being cannot be expected to think calmly and control his action by weighing as to how much injury would sufficiently meet the aggressive designs of his opponent.
• In such cases the matter cannot be weighed in scales of gold.

ANALYSIS:

Two measures of right of private defence:

• The Sanhita envisages two measures of right of private defence.
• One is the first degree which shall not reach up to causing of death of the wrongdoer. The other is the full measure which may go up to causing death.
• Both measures are subjected to the restrictions enumerated in Section 37.

Scope and comparison of sections 41 and 42

• Section 42 contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 41 recognises extension of the said right up to the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure.

Summing up:

• One has the first degree of right of private defence even if the wrong committed or attempted to be committed against him is theft or mischief or criminal trespass simpliciter.
• This right of private defence cannot be used to kill the wrongdoer unless he has reasonable cause to fear that otherwise death or grievous hurt might ensue in which case he has the full measure of right of private defence.

• Section 41 BNS, which deals with right of private defence as against an act which might be mischief or theft or criminal trespass under conditions that there should be reasonable apprehension that death or grievous hurt would otherwise be the consequence. This provision deals with the farthest extent of the right of private defence as against the above three categories of wrongs against the property.

• But a man pitted against such wrongs or even against attempts thereof need not wait for exercising his right of private defence until the apprehension of death or grievous hurt is burgeoned in his mind.

Legal provision: Section 41 BNS:

Right of private defence of property extends to voluntary causing of death or any other harm to wrong-doer in the following situations:

• in case of following offences:

• • Robbery
  • House-breaking after sunset and before sunrise
  • Mischief by fire or any explosive substance committed on any building, tent or vessel which is used
    • as human dwelling or as a place for custody of property
  • Theft, mischief, or house-trespass
    • with reasonable apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised

In all other cases the right of private defence of property does not extend to causing death. However it does extend to voluntary causing to the wring-doer any harm other than death

Legal provision: Section 43

(a)

• Right of private defence of property commences
  • when reasonable apprehension of danger to property commences

(b)

• Right of private defence of property against theft continuestill
  • offender has effected his retreat with the property or
  • either assistance of public authorities is obtained or
  • the property has been recovered

(c)

• Right of private defence of property against robbery continues
• as long as offender causes or attempts to cause
  • death or hurt or wrongful restraint or
• as long as fear of instant death or instant hurt or instant personal restraint continues

(d)

• Right of private defence of property against criminal trespass or mischief continues
  • as long as offender continues committing criminal trespass or mischief

(e)

• Right of private defence of property against house-breaking after sunset and before sunrise continues
  • as long as house-trespass which has been begun by such house-breaking continues

One needs to be careful in exercising the right of private defence of property. It should always be kept in mind that the right of private defence is preventive and not punitive.

• The right of private defence is available for protection against apprehended unlawful wrong-doing and not for punishing the wrong-doer for the offence committed by him. It is a preventive and not a punitive right.
• The right to punish for commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals.