INDIAN PENAL CODE: THE RIGHT OF PRIVATE DEFENCE

Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

INDIAN PENAL CODE EXPLAINED

The Indian Penal Code forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

THE RIGHT OF PRIVATE DEFENCE

Section 96      Things done in private defence

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

Section 97      Right of private defence of body

Subject to restrictions in section 99

• Every person has a right to defend
  • his own body
  • body of any other person
• against any offence affecting human body

Right of private defence of property

• Every person has a right
  • to defend property
  • of himself or 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

Comments by DLA on section 97

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 97 IPC recognises the right of a person not only to defend his own or another’s body but to defend his own or another’s property even against an attempt to inflict any offensive act as against the property.

Q.     Is the rule of retreat applicable in India?

Ans. 

• It is now well settled that the rule of retreat which common law courts espoused is not relevant under the Indian Penal Code. 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.

• If a man’s property is in imminent danger of being impaired or attacked he has the right to resort to such measures as would be reasonably necessary to thwart the attempt to protect his property.

Section 99      No right of private defence

……………………

• 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

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

Section 100      Private defence extends to causing death

• Right of private defence of body extends
• to voluntary causing of death
  • in case of following offences:
• assault that causes apprehension of death
• assault that causes apprehension of grievous hurt

………………….

The Penal Code 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, however, subjected to the restrictions enumerated in Section 99.

The Law of Private Defence of Body: CASE STUDY

Facts of the case

• There was a dispute with respect to possession of certain plots of land.
• This dispute led to a clash between the party of accused Deo Narain and the party of Chandrama.

The Sessions Judge came to the conclusion that possession of the disputed plot of land was undoubtedly with the accused persons.

Questions for determination:

• Whether complainant’s party had gone to the plot with an aggressive design to disturb possession of accused persons by unlawful use of force?
• Whether Deo Narain had exceeded the right of private defence in beating and killing Chandrama of the complainant’s party?

According to the trial court:

• Complainant’s party had actually gone to the plots for preventing the accused persons from cultivating and ploughing the said land.

Sessions Court decision:

• Deo Narain and Chanderdeo must have received injuries on their heads before they inflicted injuries on the complainant’s party.
• Accused were held entitled to exercise the right of private defence and to inflict the injuries in question in exercise of that right.

The accused were thus acquitted.

High Court decision

• Accused persons had the right of private defence and that they were justified in exercising that right.
• But that right had been exceeded by appellant Deo Narain in inflicting spear injuries on the chest of Chandrama, deceased.

Reasoning of the High Court

• It was only if the complainant’s party had actually inflicted a serious injury on the accused that the right of private defence could arise justifying the causing of death.
• In the present case as only two members of the party of the accused persons, Chanderdeo and Deo Narain, had received injuries which, though on the head, were not serious, they were not justified in using their spears.

Supreme Court….

• 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. ..
• The threat must reasonably give rise to present and imminent danger and not remote or distant danger