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PREFACE

Self-defence has been a basic constituent of any criminal code. An understanding of its scope
and extent is as important to the common who is to exercise this right as it is to a lawyer or
judge who is to adjudicate based on it.

This dissertation seeks to give a general overview of the concept while concentrating on some
much-debated issues that have been elucidated earlier.

Firstly, a comparative view of the law of self-defence in the various legal systems has been
taken to give an introduction to the concept. An evaluation of the evolution of the concept to
its present state of a justification for normally criminal conduct has been made along with an
attempt to find the foundational principles on which the right is based attempted as also the
status of self-defence as against the defence of necessity and its place in criminal law as a
justificatory exculpation.

The dissertation goes on to examine the theoretical debates regarding some of the basic
principles of private defence in Indian law which have been illustrated in case-law by the
judiciary. The important concept of exceeding the right has been delved into along with the
restrictions that have been put on the use of self-defence.

This project limits its scope to the discussion of the aforementioned issues preferring to
examine these more closely. Therefore in this lies the possible limitation of the exercise.

Therefore, the aim of this dissertation is to clarify the present status of the right of self-
defence in law by looking at its vital aspects and thus to give a general overview of the
subject.
INTRODUCTION
Right to private defence is an ages old concept. The concept was recognised even before the
inception of concept of law and order. Private defence is more of a natural instinct than a
right. It is recognised by both law and equity. The right of self-defence is one which has come
down from the ancient law-givers. Manu enjoined to resort to arms in self-defence

The right of private defence is based upon the law of nature. It is a natural instinct in man to
defend himself and maintain the possession of that, which belongs to him against unlawful
aggression of others. Nature has equipped the man with all those means which are essential to
achieve this object. Law does not stand in way of the natural right of self defence, which
therefore exists in full force. As observed by Donovan J. that the law of private defence is:
Not written but born with us, which we have not learned, or received by tradition, or read, but
which we have sucked in and imbibed from nature itself; a law which we were not trained in,
but which is ingrained in us, namely, that if our life is in danger by robbers or enemies from
violence, every means of securing safety is honourable. For laws are silent when arms are
raised and do not expect to be waited, for when he who waits will suffer an undeserved
penalty.1 The law of private defence being the natural and inalienable right of every man, the
law of society cannot abrogate it. Though abridged to some extent, it cannot be superseded by
the law of society. From ancient times this right has been recognised within certain
circumscribed limits. Criminal Law recognized private defence as the first rule 2 and it still
continues as a rule, though with the passage of time, this law has been much affected by
consideration of necessity, humanity and social order. The right of defence, wrote Bentham,
is absolutely necessary. The vigilance of magistrates can never make up for the vigilance of
each individual on his own behalf. The fear of law can never restrain bad men as the fear of
the sum total of individual resistance, Take away this right and you become in so doing the
accomplice of all bad men.3 It is both the right and duty of a human beings to defend not only
ones own property but also that of others. This duty, man owes to the society which flows
from human sympathy This right of private defence is not abrogated by the mere presence of
other persons who are standing merely as silent observers.7 The law wants its citizens to hold

1 R.C. Nigam, Law of Crime in India, Vol. I, (1965), p. 420.

2 Hari Singh Gour, The Penal Law of India, Vol. (1966), p. 1.

3 Bentham Principles of Penal Laws, quoted in Hari Singh Gour, The Penal Law ofIndia, Vol. I, (1966), p. 1.
the ground manfully against unlawful aggression. No man is expected to run away, when
attacked by criminals or to exhaust all other remedies available before exercising the right of
private defence. It is not required from man to behave like a rank coward at any time,
however law abiding he may be. The right of private defence, as defined by law, must be
fostered in the citizens of every free country. There is nothing more degrading to the human
spirit than to run away in the face of peril. Man is fully justified, if he holds his ground and
gives a counter attack to his assailants. But this right being one of defence only and not of
punishment and retaliation. The force used for defending the body or property must not be
unduly disproportionate to the injury to be averted or which is reasonably apprehended. The
right of private defence must never be exercised vindictive or malicious manner.4 The
inability of the state to extend its help at all times and in all eases has led to the recognition of
this right of private defence. If this right be not given recognition, a man may suffer a wrong
at the hands of an aggressor which may never be remedied by law. Thus primary duty is that
the state should give due protection to the rights of its citizens and so long as the state is
fulfilling its duty, the individual does not have any right of private defence. The individual
does not have the right to encroach upon the duty of the state to maintain law and order. But
where it fails to defend its citizens, they are allowed to use violence within certain limits to
resist unlawful aggression. The right of private defence does not exist against the acts which
are not offence. It is available against all assailants whether sane or insane,
competent or incompetent and a person mistaken or otherwise. The right prevails against
overt attacks irrespective of their intention and meaning. It exists even though the innocent
persons are harmed, when there is danger to life or limb, and there no other alternative to
protect the person. The test is whether there is immediate necessary for self-defence and
further whether or not it was immediately necessary for the defendant to adopt that particular
course of action. The right exists, if the attack is either actual or threatened. In order to justify
the taking of life on the ground of appearance of peril the appearance must be real, though not
the peril. The act of killing must commit because of an honest and well - founded belief in the
imminence danger. The Courts, should, therefore, view the circumstances from the standpoint
of the accused and not that of a cool bystander.5 In the early English law, justifiable
homicides in strictu sensu did not involve any punishment. They were not considered to be

4 D.V. Chitaley & S. Appu Rao, The Indian Penal Code, Vol. I, (1969), pp. 641-643.

5 Smt. Sandhya Rani Bardhan v. The State, 1977 CrLJ (NOC) 245 (Gauhati).
felonies and caused no forfeiture of the killers property. This was simply because the act of
homicide was either enjoined or permitted by the law. It is based, on the ancient principle of
common law that what the law requires, it also justifies. In other words, the slayer is treated
as acting on behalf of the state in the cases of justifiable homicide.19 In the modern time, the
homicidal acts in self-defence are strictly justifiable. However, it took a very long time to
reach this stage.
From the aforesaid discussion it is evident that the right of private defence forms a valuable
defence in criminal law has been set forth under the caption General Exceptions of the
Indian Penal Code. The relevant provisions are laid down in Sections 96 to 106 of the Indian
Penal Code.
However, these provisions should not be interpreted on the basis of principles governing the
right of self-defence under the common law of England. The provisions are complete in
themselves and the words used in the Sections must be looked to for finding the scope of the
right.20 Be that as it may two principles may be said to underlie these general exceptions:
First, the circumstances surrounding the commission of the act amount to a legal justification
for its commission. Second, the circumstances are incompatible with existence of mens era
and so the actor is not responsible for what he has done. To hold a man responsible for a
crime his conduct should be voluntary and he should realise that his conduct would or might
produce certain harmful results.
In the state of nature it was the survival of the fittest, the principle of self-preservation
guiding much of human behaviour. A man could kill another in self-defence, this being an
inherent natural right. This was almost an unrestricted right that the Law of Nature gave to
each individual.

Today, the liberal democratic state still recognises this inalienable right of an individual to
protect himself and his property in the face of danger.6 This departs from the monopoly over
violence which the state has retained in the sense that under every other circumstance, it is
the state alone that is justified in using force, or punishing the wrongdoer.7 The law relating to
self-defence is thus a mere extension of the principle of necessity, the test for a reasonable

6 However, in modern society, this right of self-defence or private-defence (used


synonymously in this project) is not of an absolute or unqualified nature. Although every
developed society recognises the right of private defence, it also recognises the need to limit
and control its use, qualifying its utilisation with the need for it to be bona fide and
reasonable in relation to the danger faced.
exercise of self-defence being a clear and present danger, the imminence of harm to either
person or property, and the consequent necessity to protect the self or ones property. This is
in consonance with a basic aim of criminal law which is to safeguard conduct that is without
fault from condemnation as criminal.8

The right of self-defence is one which has come down from the ancient law-givers. Right to
private defence is an ages old concept. The concept was recognised even before the inception
of concept of law and order. Private defence is more of a natural instinct than a right. It is
recognised by both law and equity. The right of self-defence is one which has come down
from the ancient law-givers. Manu enjoined to resort to arms in self-defence Manu enjoined
to resort to arms in self-defence9 and the root of this concept may be found even in Anglo-
American jurisprudence.10 It is thus an indefeasible right which may be altered, but can never
be abrogated. Nature prompts a man who is struck to resist, and he is justified in using such
amount of force which will prevent a repetition. Also, the right of private-defence bases itself
on the principle that under certain circumstances the conduct of a person is justified although
otherwise criminal, and homicide committed in such nature has been termed as excusable
homicide, the slayer having performed a task which the state would have normally carried
out.11 Thus what the law requires the law permits. This is the reason why the right has been
carefully restricted and also sacredly protected.

7 This is in the furtherance of the promotion of social justice in the welfare state where the
responsibility is divested in the individual to safeguard the social process by which social
justice is likely to be attained. This is exemplified in the example that every country, however
resourceful, cannot afford to depute a policeman to dog the steps of every doer of a criminal
act or to be present at every place wherever the crime is committed c.f. Shamsul Huda,
Principles of the Law of Crimes (Lucknow, 1982), p. 382.

8 Paul Robinson, A Functional Analysis of Criminal Law, Northwestern Unversity Law


Review, Vol. 88, No. 3, (1994), p. 857 at 858.

9 Manu, Ch. VIII, Verses 348-9.

10 Jack Lowery, A Statutory study of self-defence and defence of others as an excuse for
homicide, University of Florida Law Review, Vol. V, (1952), p. 58.

11 J.W. Cecil Turner, Kennys Outlines of Criminal Law (19th ed.) (London, 1980), p. 141.
Thus, though the presence, legitimacy and requirement of the right of private-defence cannot
be challenged, there are various contestable issues that the subject throws up. The judicial
task of determining the force that can be validly used in private-defence to constitute a bona
fide defence, the quandary over whether to adopt the objective or subjective approach to the
reasonable apprehension of danger, the quantification of danger and amount of force to be
used in defence, the time period over which this right continues in the face of immediate
danger, the beginning and end of the act constituting self-defence, if the right should be
extended to the protection (in good faith) of another person and whether the right of private-
defence is to return to the aggressor in case of excessive use of force by the person whom he
has attacked are some of these burning issues which have yet to be resolved and will continue
to give food for thought to many a jurist and law-maker in the future.
SELF DEFENCE A DYNAMIC CONCEPT
Literally speaking, self-defence means the defending of ones own person. But in the modern
time its scope has widened. It is justified to cause harm on another person on the ground that
the harm was caused to protect as a means of protecting oneself.
The term self-defence appears to have been derived from the Latin term se defendendo
which stands defined in the Blacks Law Dictionary as defending himself, in self-defence,
Homicide Committed as defendendo is excusableJames Wilkinson extended its meaning as
defending not only of ones own person but also ones rights etc .12This seems to be wider
than the earlier one because it not only covers the human being but also the rights of
individual. It connotes the almost same meaning which is attributed to selfdefence at
present day. However, it has been defined from another perspective in Jowitts dictionary as
Self-defence- life and limb are of such high value in the estimation of the law that it pardons
even homicide if committed se defendendo, or in order to preserve them. 13At one point in
legal history, there was no concept of an exception to criminal liability and often men were
hanged in cases of self-defence because such killing was not justifiable homicide. Such a
person was often at the mercy of Royal clemency.14 However, when society advanced and the
welfare state came into existence, the responsibility of protecting the person and property of
individuals was taken over by the state. The judiciary was able to appreciate the need for
recognising the right of individuals to protect themselves, and the legislature accordingly
included it as a valid defence in the criminal code.
It varies from country to country and time to time depending upon the circumstances of each
case. The concept of self-defence has undergone a marked change over the last few centuries.
Prior to 1267 a man was hanged in cases of self-defence just as if he had acted feloniously
because such killing was not justifiable homicide. The party indicated was not entitled to an
acquittal by the jury. He was sent to prison and was placed at the kings mercy for a pardon. 15
There was no concept of exceptions to criminal liability. With the advancement of society and
coming into operation of the concept of welfare state the responsibility of protecting the

12 James Wilkinson III, Self-defence in Louisiana Tulane Law Review, Vol. XVI(1941-42), p. 609

13 John Burke, Jowitts Dictionary of English Law, Vol. II (London), (1977) p.1629

14 James Bar Ames, Law and Morals, Harv. L. Rev., Vol. 22, (1908), p. 98.

15 James Bar Ames, Law and Morals, Harvard Law Review, Vol. XXII (1908-1909) p. 98.
person and property of individuals was taken over by the states. The judiciary has recognized
the right of self-defence and the legislature has given its approval by specifically providing
and enacting the statutory provisions in the criminal code. It is permissible to cause harm or
even death in order to defend oneself or another person from unlawful violence, provided that
the person causing the harm or death did what he could to avoid the violence, as by retreating
where possible, and inflicts to greater injury than he, in good faith and on reasonable grounds,
believes to be necessary to protect himself or the other. If the defence is made out, the
accused escape liability entirely, the injury or death being justified, if not he may be guilty of
assault, or even murder. The defence of his own life, but extends to defence against rape,
possibly against sodomy, and defence of another whom one reasonably should protect, such
as a child.16 Originally, self-defence was the protection of ones own person against some
injury threatened or caused by another. Later on, it was extended to the protection of ones
property within its ambit.17Subsequently, it was extended to the safety of one habitation and
the other members of his family. This view is fortified in the Alexanders writings:
It is the right of a man to repel force by force even to the taking of life in defence of his
person, property or habitation, or of member of his family against any one who manifests,
intends, attempts or endeavours by violence or surprise to commit a forcible felony18 Thus,
in the modern time, the right to defend is not limited to the family members but it is extended
to any other person and even to a stranger. There are many practical definitions of the concept
of self-defence19 but basically it is the act of a person to defend his person or property without
any aid of law. The concept of self-defence being extended to the protection of property was a

16 David M. Walker, The Oxford Companion to Law, Oxford, (1980), p. 1128.

17 Galnville Williams, Text Book of Criminal Law, London, (1978), p. 449.

18 Alexander, Law of Arrest, Vol. I, Section 319, (1914), p. 1059.

19 Chambers 20th Century Dictionary (1972) defines self-defencedefending ones own person, rights,
etc.The Oxford English Dictionary (Oxford, 1961.) defines it as the act of defending oneself, ones rights or
position specially in law.
Law Lexicon (1971) Vol. II, defines self-defence: While the law does not expect from the man whose life is
placed in danger to weigh with nice precision the extent and the degree of the force he employs in his defence,
the law does insist that the person claiming such right does not resort to force which is out of all proportion to
the injuries received or threatened and far in excess of the requirements of the case. In certain eventualities, it is
the duty of the accused even to retreat in order to avoid danger to himself before inflicting fatal injury. This is a
necessary corollary that follows from the right of self-defence being based on necessity.
Halsburys Laws of England, Vol. 37 (3rd ed.) p. 146 connotes self-defence Every person is justified in using
reasonable force to defend himself and those under his care, but the force justifiable is such only as is
reasonably necessary.
slightly later development. The extent, definition and standards attached to this right,
although fundamentally the same all over the world are subtly different. The manner in which
the legislators of different countries have approached this sensitive topic must be appreciated
in relation to the respective social conditions there which determine the expediency and legal
requirements.
The concept of self-defence can be justified on the basis of many principles. It has both legal
and moral foundations, having the backing of numerous philosophers and jurists who have
for long considered it an inalienable right. It furthers the concept of sanctity of human life
and is recognition of the natural instincts of man. There is even a view that that the law of
self-defence existed before the origin of human societies.20 It is presumed that every
individual has surrendered to society the right to be punished for crime and for infraction of
individual rights. But the right of self-defence is retained by the individual for his personal
safety and security. It is in conformity with the public welfare. Although the society may
impose restriction in the exercise of this right but it cannot be taken away, as it was brought
by the individual with him, when he entered the society. The recognition of right of self-
defence is, thus the recognition of the natural instinct of man to defend him against danger.

The evolution of the right is not only attributed to the concept of recognising the natural
instinct of man but also the responsibility of the state for protection of life and property. It is
the state which has the monopoly over violence for the protection and safety of life and
property, these being its primary concern. It alone has the power and authority to settle
disputes. But sometimes even a well organised and resourceful state cannot help. When
suddenly confronted with an aggressor, people find themselves unable to avail of State
protection. They cannot get time to approach the state officials and institutions. Under such
circumstances, they must avail of their natural right of self-defence. The incapacity of the
state to afford protection of life and property to all persons in all situations gives sanction for
recognition of the individuals right of self-defence. The extent of right is regulated besides
other factors by the capacity and resources of the state to afford protection. Mayne 21 aptly
summed up the propositions which provide foundations for the law of self-defence:-

20 Kenneth Abernathy, Recent developments in the law of self-defence, JAG Journal Vol.
18-19 (1964-65), p. 305.

21 Supra., n. 11, p. 119.


that society undertakes, and, in the great majority of cases, is able to protect private
persons against unlawful attacks upon their person and property;

that, where its aid can be obtained, it must be resorted to;

that, where its aid cannot be obtained, the individual may do every thing that is necessary
to protect himself;

but that the violence used must be in proportion to the injury to be averted, and must not
be employed for the gratification of vindictive or malicious feelings.

Therefore, it can be construed that this inalienable right is based on the principles of
paternalism and the role of the state in protecting its citizens. It is thus an important principle
with regard to the right of self-defence that the nature of the right is such that it is to be used
as a preventive and not retributive measure. In no case is it to be employed as a shield to
justify aggression. The accused cannot invoke it as a device or pretence for provoking an
attack in order to slay his assailant and than claim exemption on the ground of self-defence. It
has been laid down in a number of cases that it is not a retributive but a preventive right.22

Thus, the foundation of the right lies in the social purpose that it serves. The courts have
therefore laid down that the right is to be construed liberally. In Munshi Ram v. Delhi
Administration23 the Supreme Court observed that law does not require a person whose
property is forcibly tried to be occupied by a trespasser to run away and seek protection of the
authorities. The right of private defence serves a social purpose and that right should be
liberally construed. Such a right will not only be a restraining influence on bad characters but
also will encourage manly spirit in a law abiding citizen. This view was reiterated in Smt.
Sandhya Rani Bardhan v. State24 wherein the Guwahati High Court held that Ss. 96-106 IPC,
which deal with the right to private defence are to be construed liberally. As a general rule, no
person is expected to run away for safety when faced with grave and imminent danger to his
person and property. The law as enacted does not require a law-abiding citizen to behave like

22 Deo Narain v. State of U.P., AIR 1973 SC 473; Mukhtiar Singh and anr. v. State of Punjab,
1975 Cri.L.J. 132; Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660; Vijay Pal and
ors. v. State, 1984 Cri. L.J.188.

23 AIR 1968 SC 702.

24 1977 Cri. L.J. 245.


a coward and take to his heels when called upon to face an assault or if confronted with an
imminent danger. In fact, it held, that there is nothing more degrading to the human spirit
than to run away in the face of peril.

Thus, the whole principle of private defence can be said to rest on the balancing of the harm
and social interest theories. In order to justify the acts of the accused in cases of self-defence,
the harm which arises from the acts and the social interests sought to be protected are to be
balanced. When the accused deviates from the letter of the law, some harm is caused by his
action. On the other hand, some amount of social benefit also arises out of his conduct. As a
consequence of this balancing process, if more benefit than harm results to the society, the act
of the accused is not blamed but justified in the interest of the society. 25 In this connection,
Fletcher states that self-defence in the common law is justified by balancing the interests of
the culpable aggressor against the interests of his innocent victim. He also describes a second
model of self-defence that justifies the defensive action upon the right to resist aggressive
forcethe notions of individual autonomy and the right to protect autonomy.26

Thus, in any legal system, the extent of the right of self-defence must remain in a state of flux
regulated by external circumstances.27 It is submitted that this position has been aptly
summed-up by Dicey who writes, .the rule must be a compromise between the necessity
of allowing every citizen to maintain his rights against the wrongdoer on the one hand and the
necessity on the other hand of suppressing private warfare. Discourage self-help, and loyal
subjects become the slaves of ruffians. Over-stimulate self-assertion, and the arbitrament of
the Courts you substitute with the rule of the sword or the revolver.28

EVOLUTION

25 Note Justification and Excuse in the Judaic and Common Law N.Y.Univ. Law Review,
Vol. 52, (1977), p. 600.

26 Supra., n. 11, p. 129.

27 For an overview of the comparitive structure of self-defence see, M. Sornarajan,


Excessive Self-Defence in Commonwealth Law, (1972) I.C.L.Q. 758.

28 A.V. Dicey, Law of the Constitution (3rd ed.) (London, 1889), App. Note III.
At the outset, when criminal law was formalised in the early civil society, there was no
exception to criminal liability. Originally, the cases of self-defence became pardonable by the
king who was moved by pity in respect of such cases. Thus came in the concept of self-
defence as an excuse, where, although admitting that the accuseds acts were not right, he
would not be held accountable for his wrong due to the circumstances of the offence and the
unique facts of the case. Thus, the case of self-defence or misadventure, where pardon was
granted, were thought to be excusable homicide.

This position was changed over the centuries until as a result of the statute of Henry VIII in
1532, complete exculpation was brought to the cases of necessary self-defence and it was
hence placed under justifiable homicide. Thus, the moral connotation given to the concept of
self-defence as a right underwent a change, this distinction being made on the basis of the
concept of fault.29 Although there has been much legal and moral debate over the
classification of the concept on these lines, in the modern context this distinction has lost its
relevance, the right of private defence having been accepted almost universally as a basic
right of man.

The roots of right of self-defence in England owe their origin to Roman Law. It is, therefore,
desirable to refer the developments in Roman Law before examining the evolution of the
right of self-defence in English and American legal systems.
In Roman Law, homicide was considered to be an act by which the life of human - being was
taken away. There were two degrees of criminal homicide, which did not expose to
punishment namely, excusable and justifiable.30 Self -defence was placed in the latter
category of homicide. In self-defence violence is certainly lawful: Vim enim vi defendere
omnes leges emniaque jure permittunt (a man, therefore, incurs no liability, if he kills
anothers slave who attacks him). In the justinians law, no greater force than what was
sufficient to ward off the threatened danger was permited and there was Aquilian liability if
the slave apprehended. The same was also true, if the slave comes as thief by night. The
Twelve Tables, however, allowed killing in such a case without restrictions because they
regarded it as permissible self-redress than of slef defence. The principle that the degree of
force used must, in any case, be proportionate to the seriousness of the threatened evil, was
not expressed in these words but was commonly inferred from a general notion of

29 Ibid., pp. 28-30.

30 Lord Mackenzie, Studies in Roman Law, London, (1898), p. 415.


moderation. Subject to this permissible limitation, self -defence also included the
immediate retaking by force the property of which one had been forcibly deprived. 31 An
assault was not an injury if committed in self-defence when ones life or limb was threatened,
any amount of force to repel the injury was lawful, if it was reasonably necessary. A man put
in fear of his life could, with impunity kill his assailant, but if he could have caught the man,
and there was no necessity for killing him he was not justified. In defence of property less
latitude was allowed. Even a burglar could not be lawfully killed, if the householder could
spare his life without peril to his person. Any less violence was, however, justifiable in
defence of property . An injury was held to be aggravated:
(i) of the nature of the act, as when a man is wounded or scouraged,
or beaten with sticks;
(ii) of the place, as when the assault it in a public assembly;
(iii) of the person, as when parents are struck by children, or patrons
by freemen;
(iv) or of the part wounded, as a blow in the eye.
In these cases exemplary damages were given.32
Arnold D. McNair, describes Roman law and common law in comparative perspective on the
subject as under: Necessity appears in Roman texts as a defence in an action for damage e.g.
where a ship was driven without fault into a position in which the on hope of avoiding wreck
was by cutting the cables of another shop, or again, where it is necessary to pull down a
building to prevent a fire from destroying ones own house. How far this goes in our law is
not quite clear, but it is settled that the same rule applies as to checking a fire. It might be said
that there is no culpa here; no more is done than a reasonable man would do, and the case is
analogous to self-defence recognised in both systems of law. But in Roman law self-defence
was no reply in itself to third person who was damaged by my act and the English law seems
not very clear on this point. In Roman law, it does not appear on the texts that there was any
means of obtaining compensation for the harm thus lawfully caused, even where a house was
pulled down From this, it emerges that the self-defence was placed under the category of
Justifiable homicide. There was also a rule of proportionality with respect to the use of
force in self-defence, but in cases of grave danger to life or limb any amount of force could
be used to repel the injury. In certain cases, compensation was paid to the injured
31 H.F. Jolwicz, Roman Foundations of Modern Law, Oxford, (1957), p. 83.

32 William A. Hunter, Introduction to Roman Law, London, (1904), p, 137.


Homicide committed in self-defence is either justifiable or excusable. In justifiable homicide,
the accused is perfectly innocent and in excusable homicide the accused is blameable to some
extent. In the former, a man may without retreating oppose force by force even to the extent
of death, while in the latter, the man cannot avail the right of self-defence without retreating
to the extent possible with safety. Thus, Michael Foster calls them justifiable and excusable
self-defence respectively.33 On the other hand Rollin Perkins classified innocent homicide
using the same names but along different lines. According to him, innocent homicide is either
commanded or authorised by law. Thus, in Perkins scheme, it is found that that homicide
when authorised by law is justifiable and is excusable when not. The former arises from the
circumstances, where the slayer is in imminent danger of death or serious bodily harm and
the latter occurs in other circumstances involving no guilt on the accused.34

EVOLUTION UNDER ROMAN LAW, ENGLISH LAW

In Roman Law, homicide was considered to be an act by which the life of a human-being was
taken away. There were two degrees of criminal homicide, namely, murder and manslaughter,
and two degrees of homicide which did not expose to punishment, namely, justifiable and
excusable.35 Self-defence was placed in the category of justifiable homicide. In self-defence
violence was lawful: Vim enim vi defendere omnes leges emniaque jure permittunt (A man,
therefore, incurs no liability, if he kills anothers slave who attacks him.). The Justinian code
and the Twelve Tables reiterated this right of private defence, the Code holding that no
greater force than what was sufficient to ward off the threatened danger was permitted and
the Tables on the other hand, allowing killing in such a case without restrictions regarding it
to be permissible self-redress rather than self-defence.36

33 Ibid., p. 32.

34 Rollin M. Perkins, Criminal Law (New York, 1969), p. 33.

35 Lord Mackenzie, Studies in Roman Law (London, 1898), p. 415.

36 Supra., n. 11, p. 44.


On the other hand, in English law the status of the right of self-defence underwent a series of
changes through the ages. In the ancient period it was a period of absolute liability even for
homicide committed se defendendo. In the Medieval period, the theory of pardon developed
and it became excusable and in the Modern Age, homicide committed in self-defence is
treated as justifiable, because it is presumed that such act is not backed with evil intent. In the
early days, the law regarded the word and the act of the individual but it did not search the
heart of the man. It was the age of strict liability. Man was held responsible for his acts
irrespective of his intentions. His mental state was not taken into account when determining
the liability for the commission of the crime. It was the external conduct and the injury upon
which liability was imposed. The presence of a guilty mind was not any condition of liability.
The accidental injuries and the injuries done under the coercion of self-defence were equally
sources of liability. Thus, criminal liability was not related to the evil intention of the actor.37
However, in the 13th century there was a shift from strict liability and increased emphasis was
laid upon the mental element. During this period, killing was justified in a few exceptional
cases. One who killed in misadventure or in self-defence was still guilty of a crime, although
he deserved a pardon from the King. During the Medieval period, though the accused
obtained pardon yet he forfeited his goods for the crime committed in self-defence. The moral
sense of the community could not tolerate indefinitely the idea that a blameless self-defender
was a criminal. Ultimately, the jury was allowed to give a verdict of not guilty in such cases.
Pardon of the King soon became a formality in such cases and thus grew the concept of
excusable homicide. The act of pardon was a kind of excuse. The word excuse itself denoted
the condonation of some wrong committed by the offender. Blackstone perceived the essence
of excuses to be the want or defect of will. 38 This all changed in the modern period. In
modern times, there is the presumption that there exists no mens rea in the homicides
committed in self-defence and as such it has become a justifiable general defence in law. The
forfeitures of chattel were also abolished in 1828. Thus the cases of self-defence became
exculpable. Thus, now no criminal liability is attached to the accused in such cases. This is in
conformity with the provisions of Article 2 of the European Convention on Human Rights.39

Thus, in modern times every evolved legal system has accepted the right of self-defence as a
universal one.

37 Ibid., p. 47.

38 Ibid., p. 56.
DEVELOPMENT OF THE RIGHT OF SELF-DEFENCE UNDER ENGLISH LAW

The criminal liability in cases of self-defence may conveniently be divided into three periods:
(i) Ancient period which may be said to the era of absolute liability for homicide committed
se defendendo; (ii) Medieval period in which the theory of pardon developed and it became
excusable, and (iii) Modern age where homicide committed in self-defence is treated as
justifiable, because it is presumed that such act is not backed with intent.

Ancient Period
In the early history of mankind, it had become customary to commute vengeance for a money
payment. When once this practice had firmly rooted, disputes as to the amount of
compensation, were referred to the tribal assembly for settlement. The tribal assembly was
held periodically among primitive people. At a later stage, most crimes became emendable
but the gravest offences remained undependable. The wite became a source of royal
treasury and as a result of this, the Kings jurisdiction was enlarged in this area.

Medieval Period
During the medieval period, though the accused obtained pardon yet he forfeited his goods
for the crime committed in self-defence. The moral sense defender was a criminal. Ultimately
the jury was allowed to give a verdict of not guilty in such cases. 40 of the community could
not tolerate indefinitely the idea that a blameless self Unlike the ancient period (spreading
upto the twelfth century) which was the age of absolute liability, during the middle ages some
rationality entered into the field of criminality, as the notion of mens rea had emerged.
As a result of this, the King began to grant Pardon in the cases of homicides committed per
infortunium etse defendendo. So long as the excuse of self-defence remained a matter of royal
favour, there were no determined rules in this regard. However, certain principles were
inherent in the doctrine from the very beginning. One of them was that if the killing was
39 Everyones right to life shall be protected by law and deprivation of life shall not be
regarded as inflicted in contravention of this article, when it results from the use of force,
which is no more than absolutely necessary in defence of any person from unlawful
violence.

40 Ames, James Barr, Lectures on Legal History, London, (1913), p. 436.


unnecessary, there would have been no pardon. This principle still remains the most
important element in the law of self-defence.

Modern Period
Finally we have come to a point where liability in such a case is determined upon a
consideration of all the surrounding circumstances, upon a basis of fault and a normal
reaction of a reasonable man.31 Instead, in modern times there is a presumption that there
exists no mens rea in the homicides committed in self-defence and as such it has become a
justifiable defence in law.
In view of the legal justification of self - defence in modern legal theory, the forfeitures
which accompanied the pardon, were also abolished in the year 1828. Thus, the cases of self-
defence which were pardonable during the middle ages, have become exculpable in the
modern times. So, now no criminal liability is attached to the defendant in such cases. It is a
justifiable homicide, if committed se defendendo. This is in conformity with the provisions of
article 2 of the European Convention on Human Rights. The relevant article runs as follows:
Every ones right to life shall be protected by law and deprivation of life shall not be
regarded as inflicted in contravention of this article, when it results from the use of force,
which is no more than absolutely necessary in defence of any person from unlawful
violence. To sum up, the notion of self-defence is justified in almost in every legal system
today.

DEVELOPMENT OF THE RIGHT OF SELF-DEFENCE UNDER AMERICAN LAW

In America the law on this subject has emerge out of English common Law. Like English law
the various states statutes in U.S.A. draw a distinction between justifiable homicide and
excusable homicide in self-defence. When one, without any blame on his part, is attacked by
another in such a manner that he has a reasonable belief of suffering death or grave bodily
injury and kills in self-defence, believing such killing killed to be necessary to protect
himself, the result is a justifiable homicide. Thus, the right to kill extends even to case of fear
of grave bodily injury. But the essential elements are (i) blamelessness on the part of the
killer, (ii) a reasonable belief as to the existence of imminent threat and (iii) the necessity of
the killing. Such right of self-defence has been called self-defence without fault or perfect
self-defence.
Excusable homicide in self-defence arises where in sudden affray or combat, one fearing
reasonably imminent death or grave bodily injury, kills the other believing such killing to be
necessary to protect himself. This is akin to the se defendendo of common law. The law in
this case presumes that both the parties were at fault in some measure. It was for the existence
of this fault in the killer that under old English law death penalty was imposed for such
homicide and later the penalty of forfeiture of goods was imposed. Such kind of homicide in
self-defence is called imperfect self-defence in the American law.

IMPORTANT LEGAL ASPECTS TO ACCESS PRIVATE DEFENCE


An actor may commit the actus reus of an offence with the requisite mens rea and yet escape
liability because he has a general defence. These defences therefore have a vital role of rule
articulation and liability assignment in criminal law.41

DIFFERENCE IN EXCUSE AND JUSTIFICATION

The various defences to criminal liability can be classified into sub-groups:-42

exemptions like immaturity and mental disorder.

excuses such as intoxication, automatism, physical compulsion and impossibility, mistake


or impossibility of fact, mistake and ignorance of law and duress and necessity.

justifications of self-defence, protection of property, advancement of justice, etc.

Although the concept of exemptions is well settled, there is a raging debate over which
defence constitutes a defence and which a justification. The guidelines to determine these are
also developing. This distinction becomes important because through a functional analysis of
criminal law it is possible to realise that justifications carry out a rule-articulation function
while excuses to a large extent are used during liability assignment. The relevance of this is in

41 For a further analysis of the functions of defences see, supra., n.3.

42 Grant Smyth, The Law Reform Commission of Canada and the Defence of Justification,
Criminal Law Quarterly, Vol. 26, (1983-84), p. 121 at 122.
the message that goes to the common man. A conduct which is excused for a particular
person (which for example is a result of his physical impossibility) is not necessarily
excusable for another person of dissimilar capabilities. On the other hand, a justification,
regardless of the actor, will not give rise to criminal liability if the same circumstances exist
once again.

The most basic difference between a justification and an excuse as exculpations is that we
excuse the actor because he is not sufficiently culpable or at fault whereas we justify an act
because we regard it as the most appropriate course of action even though it may result in
harm that would, in the absence of justification, amount to crime. It would therefore be a
mistake to lump all exculpations together. This would obscure the principles underlying
criminal responsibility. It does not follow that a distinction between the two is unimportant
merely because there is no formal one made in law. The reasons why, and the circumstances
in which we would excuse may be altogether different from the corresponding reasons for
justifications. We admit excuses as an expression of compassion for one of our kind. A plea
for justification, by contrast, is founded upon laws preference, in social and policy terms, for
one course of action in preference for another.

All justifications have the same internal structure; triggering condition permit a necessary
and proportional response. The triggering conditions are the circumstances which must exist
before the actor will be eligible to act under a justification. 43 Thus, Justification defences are
not alterations of the statutory definition of harm sought to be prevented or punished by an
offence. The harm caused by the justified behaviour remains a legally recognised harm which
is to be avoided whenever possible. Under the special justifying circumstances, however, that
harm is outweighed by the need to avoid an even greater harm or to further a greater societal
interest.44

On the other hand, excuses admit that the deed may be wrong; but excuse the actor because
conditions suggest that the actor is not responsible for his deed. Each of the excuse defences
has the following internal structure: a disability causing an excusing condition. The disability
is a real condition of the actor at the time of the offence. The disability is a real condition

43 Paul Robinson, Criminal Law Defences: A Systematic Analysis, Columbia Law Review,
Vol. 8, (1982), p. 199 at 216.

44 Ibid., p. 213.
with a variety of observable manifestations apart from the conduct constituting the offence. 45
Excuses therefore admit that the deed may be wrong, but excuse the actor because conditions
suggest that the actor is nor responsible for his deed. He is exculpated only because his
condition at the time of the offence suggests that he has not acted through a meaningful
exercise of free-will and therefore is not an appropriate subject from criminal liability.46

Therefore, the conceptual distinction becomes important because justified conduct is correct
behaviour which is encouraged or at least tolerated. In determining whether conduct is
justified, the focus is on ht act, not the actor. An excuse represents a legal conclusion that the
conduct is wrong, undesirable, but the criminal liability is inappropriate because some
characteristic of the actor vitiates societys desire to punish him. Excuses do not destroy
blame, rather, they shift it from the actor to the excusing condition. The focus in excuses is
thus on the actor. Acts are justified, actors are excused.47

Thus through this analysis it is possible to see how self-defence has come to get its place as a
justification rather than as an excuse exculpation. It is the surrounding circumstances that
convert an otherwise criminal conduct into a justified action. It is the act that law justifies
when an actor protects himself under the adverse circumstances of a reasonable apprehension
of danger to his life or property. Thus, society attempts to protect behaviour which is free of
moral blame-worthiness from punishment

SELF DEFENCE AND NECESSITY


One of the determining elements in self-defence is the belief of accused in the imminence of
danger. For this it is not only necessary that he has reasonable grounds to believe but it is also
necessary that his mind reacts to those grounds to the extent of believing that (i) danger is
imminent and (ii) that force must be used to repel it. When an offence is committed or is
about to be committed by one against another and there has not time to seek the aid of the
state, he can prevent that by committing or continuing to commit the offence. If one is
threatened with a reasonable apprehension of death or grievous hurt, he can cause that one
death if he cannot otherwise avoid it.

45 Ibid., p. 235.

46 Ibid., p. 221.

47 Ibid., p. 229.
Necessity is another condition, which the law imposes on the right to kill in self-defence.
There must have been a threat, actual or apparent, of the use of deadly force against the
defender. The threat must have been unlawful and immediate. 48Indeed, self-defence is
indiscriminately treated as a form of action in teleological necessity in the sense that the
defenders conduct is justifiable on the ground that the harm which he inflicted was necessary
to preserve his legally protected interest i.e. right to live. The right of self-defence implies
that there is a human assailant, who is bound by a legal duty.
The question of self-defence arises only on the violation of the defendants
legal right and as such the defender injures the creator and embodiment of the evil
situation.49Indeed, the rule of law does not allow a right of private defence when there is no
violation of a legal right.
To a layman, there is very little difference between self-defence and necessity. Necessity
itself is usually a defence in criminal jurisprudence and negatives criminal liability. In
common parlance, the right to self-defence is understood as the action taken to protect life
and property from an adversary whereas the defence of necessity is taken up when it is
pleaded by the accused that whatever he did was done due to necessity to take those
measures to save life and property.

The right of self-defence implies that there is a human assailant, who is bound by a legal duty
i.e. not to harm others, because everybody has a legal right to life and liberty. On the other
hand, in case of necessity, there is no violation of legal right of an individual. In self-defence,
the defender injures the perpetrator and embodiment of the evil situation, while in necessity,
he harms a person who is in no way responsible for the imminent danger.50

Self-defence presupposes the existence of some immediately apprehended grave danger


through some human agency or one which is not a natural calamity. It is an action taken by
the accused to counteract the immediate apprehended movement or action of the assailant,
which is always controlled by human agency. Necessity, on the other hand, is something
which can neither be conceived beforehand nor can be seen or realised in advance. It is a
situation which comes into existence suddenly on the spot and needs a quick and sudden
solution. In necessity the element of any human agency is not always present.
48 U.S. v. Peterson, (1973) 483 F. 2d 1222.

49 Jerome Hall, General Principles of Criminal Law, Indianpolis, (1947), p. 401.

50 Jerome Hall, General Principles of Criminal Law (Indianopolis, 1947), p. 401.


This distinction has been taken cognisance of on the above grounds in the case Thangavel v.
State51 where the Court held that the concept of necessity is wider and there cannot be a right
to private defence in all cases of necessity. This position has also been clearly summed up in
the American case State of Arizona v. Wootton52 the court holding that the distinction between
necessity and self-defence consists principally in the fact that while self-defence excuses the
repulse of a wrong, necessity justifies the invasion of a right.

THE BASIC PRINCIPLE OF SELF DEFENCE WITH CONTEXT TO


INDIAN LAWS
Before the drafting of Indian Penal Code, the Britishers administered justice through various
Regulations. These Regulations were based on English common law. Later on, the
Presidencies of Calcutta, Madras and Bombay were given powers to make laws. The
increasing legislative powers were responsible for the growth of a heterogeneous system of
laws, both substantive and procedural. The conflicting laws created difficulties in
administration of justice. This led to appointment of Law Member of the Council of
Governor General. The statute of 1833 provided for appointment of Law Commission to draft
Penal Code for India53. The expression private defence, which has been used in India, has
not been defined in the Indian Penal Code. In the absence of any statutory definition judiciary
was invited to delineate the contours of these expressions.
In India, the right of private defence is the right to defend the person or property of himself or
of any other person against an act of another, which if the private defence is not pleaded
would have amounted to crime. It furnishes justifications for an act which would, otherwise,
be considered to be a crime.
In other words, it creates an exception to the criminal liability. The law of private defence
embodied in the Indian Penal Code is based upon the English law but has been adapted with
slight changes suited to the needs of the country. The English law, therefore, is the Fountain-
head. Sections 96 to 106 of the Indian Penal Code deal with the right of private defence of
body and property as administered in India, These Sections help the Courts in deciding
whether an act has been done within the right or not and whether the accused should be
acquitted or punished for the same.
51 1981 Cri. L.J. 210.

52 1920 Arizona case c.f. supra., n. 11.

53 First Law Commission of India, Note B, Reprint, (1879), p. 110.


According to the law commissioners, the principle laid down in these Sections should not be
considered as the foolproof test on the subject. 54Law Commissioners observed: We think it
right, however to say that there is no part of the code with which we feel less satisfied than
this. We cannot accuse ourselves of any want of diligence or care. No portion of our work has
caused us more anxious thought or has been more frequently rewritten. Yet we are compelled
to hold that we leave it still in a very imperfect state; and though we do not doubt that it may
be far better executed than it has been by us, we are inclined to think that it must always be
one of the least exact parts of every system of criminal law. 55 These Sections of the Indian
Penal Code do not require that before exercising the right, the defender must exhaust all other
remedies available to avoid causing harm to his assailant. 56 The right of private defence will
be of no use if it were to be exercised after the commission of an offence. This right cannot
be exercised merely because an unlawful or wrongful act has been committed. Not only that
act should be offence but also offence of a particular type like theft, robbery, mischief or
criminal trespass.57 An act committed in the exercise of the right of private defence is not an
offence; thus the opposite party cannot claim the right of private defence against such an act.
Similarly an aggressor cannot claim the right of pri vate defence if his act was likely to cause
the death of the other. The right conferred by the Indian Penal Code is a limited right and the
benefits of it can only be taken when the circumstances fully justify the so exercise of the
rights.

Nature of the Right of Private Defence


The right of private defence is a right and not a privilege. Basically, it is a natural right which
is evidenced from the circumstance. It is given to every human being and not to a particular
person or class. The right flows in particular situations and everybody in that situation has
that right. It is not a special gift of law but a natural right of human being given
reorganization by law, so it is a right pure and simple, and not a privilege which is expected
54 R.C. Nigom, Law of Crimes in India, Vol. I, (1965), p. 426.

55 Note B, Reprint, p. 110 quoted in ibid.

56 Barisa Mudi v. State, AIR 1959 Pat. 22.

57 Chandra Bhan v. State, AIR 19 All 39.


to be possessed by particular person or classes.58 The law of self-defence requires that the
force used in self-defence should be necessary and reasonable in the circumstances. The
requirements of necessity place two limitations:
First, there should be duty to retreat, while using necessary forces for self-protection. This
duty is subject to certain exceptions. The duty to retreat does not exist in cases of justifiable
homicide or justifiable self-defence at the common law.
Second, the amount of force should have been no more than necessary for the purpose of self-
defence. But in the moments of excitement and disturbed mental condition, this cannot be
measured in fine scales.59 Thus, in order to avert an impending danger, if the right of self-
defence is used in an excessive manner, it is forfeited According to Moreland, if there is no
imminent necessity for the killing, there should be no legal justification for it. Whether a ease
of necessity exists, must be determined from the view point of the defendant. The act of the
defendant must be viewed in the light of the circumstances as they appeared on such
occasion.60 Perkins also lays stress on actual necessity, while dealing with the nature of self-
defence.61The right to kill in self-defence does not depend upon the necessity actually
existing but it is enough that it should reasonably appear to the defendant that killing was
necessary. He must have actually believed that he was in urgent danger and the acted upon
that belief. The circumstances must be such that make the belief reasonable. The
reasonableness of the apprehension is to be ascertained according to the circumstances of the
particular case.62
A reasonable apprehension of death or serious bodily injury justifies the taking of life. The
justification of taking life, according to Edward Miron Dangel 63depends upon (i) the actors
honest belief that he is in danger, and (ii) such belief is reasonable warranted by the conduct
of the victim and the surrounding circumstances. According to him law has the highest regard
58 Carol Harlow, Self-defence: Public Right or Private Privilege, The CriminalLaw Review, (1974), p. 528.

59 Deo Narain v. State ofU.P(1973) 1 SCC 347.

60 Roy Moreland, The Law of Homicide, Indianapolis, (1952), p. 260.

61 Perkins, Criminal Law, (1957), p. 884.

62 Joseph H. Beale, Homicide in Self-defence, Columbia Law Review, Vol III,(1903), p. 526-27.

63 Edward Miron Dangel, Criminal Law, Boston, (1951), p. 162.


for human life and it can be taken only in case of urgent necessity so as to prevent death or
serious bodily harm. Probability of slight injury is not adequate. There must be reasonable
apprehension of great and imminent bodily injury or loss of life. Killing may only be
justified, when it cannot be safely avoided and when all other reasonable safe means have
been exhausted.
The Commissioners, while drafting the Indian Penal Code incorporated inter alia, the right of
private defence in it. Sections 96 to 106 of the Indian Penal Code, 1860, were, accordingly
framed to provide the law of self-defence. The Indian Law of self-defence is wider and more
comprehensive than the English Law. The Indian Law on the subject made a departure from
English Law, which was justified by the Commission. The expression private defence that
has been used in the Indian Penal Code, 1860,64 has not been defined therein. Thus, it has
been the prerogative of the judiciary to evolve a workable framework for the exercise of the
right. Thus, in India, the right of private defence is the right to defend the person or property
of himself or of any other person against an act of another, which if the private defence is not
pleaded would have amounted to crime.65 Also as according to Section 97 this right vests
even in strangers for the defence of the body and property of others. As Bentham said: It is a
noble movement of the heart, that indignation which kindles at the sight of the feeble injured
by the strong. It is noble movement which makes us forget our danger at the first cry of
distress. It concerns the public safety that every honest man should consider himself as the
natural protector of every other.
This right therefore creates an exception to criminal liability.66 Some of the aspects of the
right of private defence under the IPC are that no right of self-defence can exist against an
unarmed and unoffending individual,67 the right is available against the aggressor only and it
64 Hereinafter IPC.

65 R.D. Yadav, Law of Crime and Self-Defence (New Delhi, 1993), p. 18.

66 Sec. 96 of the IPC lays down that nothing is an offence which is done in the exercise of
the right of private defence. Sec. 97 states that everybody has a right to defend his own body
and the body of any other person against any offence affecting the human body and the
property, whether movable or immovable of himself or of any other person against any act
which is an offence falling under the definition of theft, robbery, mischief or criminal trespass
or which is an attempt to commit theft, robbery, mischief or criminal trespass.

67 Gurbachan Singh v. State of Haryana, 1974 SCC (Cri.) 674.


is only the person who is in imminent danger of person or property and only when no state
help68 is available who can validly exercise this right. The right of private defence is a natural
right which is evinced from particular circumstances rather than being in the nature of a
privilege.

Right of self defence revolves around the general adage that necessity knows no law and it
is the primary duty of man to first help himself. The right of self-preservation is inherent in
every person but to achieve that end nothing could be done which militates against the right
of another person. The Supreme Court in a case held that right of private defence given by the
Penal Code was essentially one of defence or self-protection and not a right of reprisal or
punishment. That right was subject to the restrictions indicated in Section 99, which were as
important as the right itself. One of them was that harm inflicted in self-defence should be no
more than that was legitimately necessary for the purpose of defence. Further, the right was
co-terminus with the commencement and existence of a reasonable apprehension of danger to
body from an attempt or a threat to commit the offence as stated in Section 102 of IPC.
Attack by way of retaliation is not covered by the general exception to criminal liability.

However, the most important and repeatedly used principle is that the law of self-defence
requires that the force used in defence of the self should be necessary and reasonable in the
circumstances. This right proves to be a shield against the evil elements of the society but the
problematic area regarding it is what if this shield will be used a sword. The right of private
defence is subject to certain restrictions, first one is that harm inflicted in self-defence must
be no more than is legitimately necessary for the purpose of defence an important
modification in this restrictions is earlier the main focus was on the weapon used but now the
focus is on the part of the body which is attacked therefore in DeoNarains Case it has been
held that the accused was justified in using his spear though the other party had aimed only a
lathi blow on the head, which being a vulnerable part even a lathi blow can prove to be
dangerous The amount of force to be used should have been no more than is necessary for the
purpose of self-defence. But, in the moments of excitement and disturbed mental condition,
this cannot be measured in golden scales.69 The second one is whether the act done in self
defence was actually for self defence. The right of private defence is available against an
offence and therefore when an act is done in exercise of right of private defence such act

68 Sec. 99, IPC.

69 Deo Narain v. State of U.P., (1973) 1 SCC 347.


cannot give rise to any private defence in favour of the aggressor in return. Right of private
defence is not available whether the case of necessity exists must be determined from the
viewpoint of the accused and his act must be viewed in the light of the circumstances as they
appeared on such occasion.70 Specific limitations have also been provided for when the right
cannot be validly exercised71 and also the act specifies clearly the cases in which the right can
extend to the causing of death of the aggressor,72 as well as different degrees of harm to him.73

This proposition of law in itself is contradictory to the basic philosophical justification of the
right to self-defence. This right has been granted to protect oneself from any harm which is
probable to be inflicted by a person but how is it justified to kill the other for the same. The
reasonable apprehension can only be justified if the accused had an honest belief that there is
danger and that such belief is reasonable warranted by the conduct of the aggressor and the
surrounding circumstances. This brings in an iota of an objective criterion for establishing
reasonableness. The imminence of danger is also an important prerequisite for the valid
exercise self-defence. Thus, there should be a reasonable belief that the danger is imminent
and that force must be used to repel it.

The right of private defence of body or property commences only on reasonable apprehension
of danger. This reasonable apprehension of danger to either body or property arises from an
attempt or threat to commit the offence. The apprehension should be such as would be
entertained by a reasonable person at the crucial time. It would, however, not extend to
superstitious fears.74 Likewise, every threat cannot justify a man to take up arms. He must
pause and think whether the threat is intended to be put into immediate execution and
whether the person uttering the threat has the capacity to carry it out.

70 Roy Moreland, The Law of Homicide (Indianapolis, 1952), p. 260.

71 Sec. 99, IPC.

72 Ss. 100 & 103, IPC.

73 Ss. 101 & 104, IPC.

74 State v. Dhiria Bhavji, AIR 1963 Guj. 78.


In the modern age of science, where firearms are possessed and frequently used, the norms
relating to commencement and termination of the right in respect of person and property are
changing rapidly. Today, when death can be caused instantaneously with a single action
which may not give any opportunity to defend, the basis of apprehension has substantially
changed. Thus, the more fatal a weapon, the earlier it creates an apprehension of death. Thus,
there can be no objective standards for determining these concepts, and every decision
requires taking stock of the whole situation.

Why Right Is Available Against Four Offences Only


The only offences in respect of which right of private defence is granted are theft, robbery,
mischief and criminal trespass. There are other offences which can be committed against
property are not mentioned in Section 97 of the Indian Penal Code. 75Both Rattanlal and Gour
are of the view that the word theft must include all offences ejusdem generis. According to
them the applicability of the principle of ejusdem generis to the specified offences in Section
97 of the Indian Peal Code is based on same or similar reasons. 76Ratanlal says: As to the
defence of property the Section speaks of theft and robbery but not offences like house
breaking and dacoity. It, therefore, seems that the mention of theft must be taken to
include all offences ejusdem generis. The same consideration applies to the mention of
mischief and criminal trespass.77
Gour is of the opinion:
The enumeration of these offences in apparently in exhaustive. Indeed, it is not intelligible
why the Section should have mentioned theft and omitted to mention house-breaking and
dacoity. Indeed if the two offences mentioned were intended to be referred to only
generically, then the mere mention of theft without robbery would have been sufficient.
As it is the right being declared to exist against theft must be deemed to exist against all
offences ejusdem generis. And the same may be said mischief and criminal trespass. 78
According to Raju, both Ratanlal and Gour are in error while applying the principle of
ejusdem generis to the offences mentioned in Section 97 of the Indian Penal Code. Robbery

75 Whitworth, Geogre Clifford: Raj Kumar Law Lectures, (1909), p. 63.

76 V.B. Raju, Commentaries on the Indian Penal Code, Vol. I, (1965), p. 346.

77 Ratanlal Ranchhoddas & Thakore Dhirajlal Keshavlal: The Law of Crimes inIndia, (1971), pp. 199-200.

78 Hari Singh Gour, The Penal Law of India, Vol. I., (1966), p. 651.
is mentioned along with theft in Section 97 of the Indian Penal Code because of the fact that
robbery does not always include theft. Robbery can be committed by extortion also. Both
Gour and Ratanlal have not taken into consideration, this distinction between theft and
robbery.79 The other offences which can be committed against property are not mentioned in
Section 97 of the Indian Penal Code because of the fact that the right of private defence can
be used only against offences mentioned in Section 97. In the case of extortion, when
violence is used, the offence comes under robbery mentioned here. Cheating is not
enumerated because the moment a man will discover that he was deceived, he can have
recourse to authorities. Criminal misappropriation and breach of trust are omitted as they are
committed by the wrong doer in the absence of the wronged persons so there can be no right
of private defence against the wrong doer. Dacoity is simply another form of robbery; and
house trespass and house breaking are forms of criminal trespass. Thus, even if only four
offences are enumerated, the right of private defence can be claimed against all the offences
against property so long as it is practicable. But it is practicable only in cases of theft,
robbery, criminal trespass and mischief and the aggravated forms of these offences.80 It is not
necessary that one of the offences mentioned in Section 97 of the Penal Code should have
been committed, for the exercise of the right of private defence, as it is enough if there is an
attempt to commit the same.81

Scope of the Self Defence

General
The scope of self-defence has undergone a change. Under the English law in the early time,
the right of self-defence was confined to defence of ones person only. Later on, its scope was
extended. Thus, the modern law of self-defence covers the defence of all persons irrespective
of the relationship. It includes any one else under a mans immediate protection. 82 Glanville
Williams supports this view and says that even a stranger may be defended, because defence
79 V.B. Raju, Commentaries on the Indian Penal Code, Vol. I, (1965), p. 346.

80 Whitworth, George Clifford: Raj Kumar Law Lectures (1909), pp. 63-64.

81 Dalganjan, (1923) 25 CrLJ 481.

82 Foster, Crown Law, (1762), p.274.


is not limited to self-defence, and it is convenient to use private defence as a more apt
expression.83

Scope of Self-defence in India


Section 97 of the Indian Penal Code which delineates the scope of the right of private defence
lays down that every person has the right to defend: (1) his own body and the body of any
other person against any offence affecting the human body (2) the property movable or
immovable of himself, or of any other person against theft, robbery, mischief or criminal
tresspass or attempts to commit any of these offences.
Sections 99, 98 and 100 define the limits within which the right can be exercised, the persons
against whom it can be exercised and the extent of injury that can be inflicted justifiably upon
the person against whom the right avails.
Since under Section 97, every person is entitled to defend his own body and the body of any
other person against any offence, therefore in a case of rape the right is not restricted to
relatives of a woman. When it could reasonably be suspected that the offender had entered
the house either to commit rape or some other offence, any person is justified in trying to
arrest the accused and if he is armed with a deadly weapon, he would be justified in causing
his death, if necessary.84 The expressionthe body of any other personmeans that the person
may even be perfect stranger. Section 97 of the Indian Penal Code which delineates the scope
of the
right of private defence lays down that every person has the right to defend:
(1) his own body and the body of any other person against any offence affecting the human
body
(2) the property movable or immovable of himself, or of any other person against theft,
robbery, mischief or criminal tresspass or attempts to commit any of these offences.
Sections 99, 98 and 100 define the limits within which the right can be exercised, the persons
against whom it can be exercised and the extent of injury that can be inflicted justifiably upon
the person against whom the right avails.

83 Glanville Williams, Text Book of Criminal Law, London, (1983), p. 501.

84 Mohtasham Aslam v. Emperor, 39 CrLJ 35.


Since under Section 97, every person is entitled to defend his own body and the body of any
other person against any offence, therefore in a case of rape the right is not restricted to
relatives of a woman. When it could reasonably be suspected that the offender had entered
the house either to commit rape or some other offence, any person is justified in trying to
arrest the accused and if he is armed with a deadly weapon, he would be justified in causing
his death, if necessary.85The expression the body of any other person means that the person
may even be perfect stranger.86 The scope of the right of private defence was also delineated
by the
Supreme Court in Jai Dev v. State of Punjab:87 This, however, does not mean that a person
suddenly called upon to face an assault must run away and thus protect himself. He is entitled
to resist the attack and defend himself. The same is the position if he has to meet the attack on
his property. In other words, where an individual citizen or his property is faced with a danger
and immediate aid from the State machinery is not readily available,
the individual citizen is entitled to protect himself
and his property. The scope of the right of private defence was best summed up in Mozam
Ansari v. Stated88 in the following words:
The person in possession of property is entitled to defend himself and his property by force
and to collect such numbers and such arms as are necessary for that purpose, if he sees actual
invasion of his rights, which invasion amounts to an offence under the penal code and when
there is no time to get police help. It is lawful for a person who has seen an invasion of his
rights, to go to the spot and object. It is also lawful for such persons, if the opposite party is
armed, to take suitable weapons, for the defence. The right of private defence of property
arises as soon as there is a reasonable apprehension of danger to the property. The person
entitled to exercise that right can act before actual harm is done. It is not a right of retaliation
and hence he need not wait until the aggressor has started committing the offence which
occasions the exercise of his right of private defence. A survey of judicial decisions reveals
that in order to invoke the right of defence to person or property the accused must prove that
he was placed in such a dangerous situation and to protect himself he had to use reasonable
85 Mohtasham Aslam v. Emperor, 39 CrLJ 35.

86 Nga Thau v. Emp., AIR 1933 Rang. 273.

87 AIR 1963 SC 612

88 1961 BLJR 824.


force. The accused defendant need not wait till he is struck, for exercising the right of private
defence. He may use the right where there are reasonable apprehensions of immediate danger
of person or property.

Scope of Self-defence in England

The scope of self-defence in England has been delineated in Jowitts Dictionary:89


Self-defence and the defence of such as stand in the relation of husband and wife, or parent
and child, or master and servant, is a right which belongs to every person. Probably the right
is not limited to these relationships but extends to the defence of any person. If a person is
forcibly attacked in person or property, it is lawful for him to repel force by force, and the
breach of the peace which happens is chargeable upon him only who began the affray. It is a
sufficient answer to this defence to show that the first assault was justifiable. Self-defence is
primary law of nature, and it is not, neither can it be, in fact, taken away by the law of
society. It is an excuse for breaches of the peace, or even for homicide itself, but if t he
resistance exceeds the bounds of mere defence and prevention the defender would himself
become an aggressor. A defendant who pleads self-defence in answer to a charge of assault,
must prove that he did not want to fight. He must have demonstrated by this actions that he
was prepared to temporizes and disengage and perhaps to make some physical withdrawal,
but he need not have gone so far as to take to his heels and run away. This is the law whether
the alleged assault resulted in death or otherwise.
The English Court adopted similar meaning in various cases 90 wherein the Court emphasized
that there cannot arise any question of private defence where the primary object of both
parties was to fight and the vindication of their right to property was merely a pretext. The
right of private defence to property can only exist in favour of the person who possesses a
clear title to that property and where no such title has been determined, no right of private
defence can exist. The right of self-defence is no longer restricted to a person himself being
under attack or being subjected to assault. It would be apposite to refer to the following
observation made in the Halsburys law of England:91

89 John Burke, Jowitts Dictionary of English Law, Vol. I, London, (1977), p. 580.

90 R.v. Wheeler, (1967) 1 WLR 1531, R. w.Julien, (1969) 1 WLR 839.

91 Halsbury The Law of England, Vol. IX, (1973), Para 1180.


A person acting in self-defence is normally acting to prevent the commission of a crime, as
is a person acting in defence of another. The test to be applied in such cases is now establish
to be the same as for cases of prevention of crime that is the force used in self-defence or in
defence of another must be reasonable in the circumstances. Even a stranger can act to
prevent crime.92

Scope of Self-defence in America


In America, the law is that whatever one may do for himself, he may do for another.93 The
editor of kenny is also in agreement with this view. According to him the right of self-defence
is not limited to the particular person assailed but it includes all those who are under an
obligation, even though merely social and not legal, to protect him. He was hopeful that the
Courts would take a view that it is a duty of the strong to protect the weak.94

LIMITATIONS TO THE RIGHT OF PRIVATE DEFENCE


The right to private defence is not unlimited but it is subject to certain limitation. However, it
is difficult to draw distinction between the basic principles and the restrictions, which are the
basis for exercise of the right of private defence, because sometimes basic principles and
restrictions or limitations are used together. Be that as it may, these restrictions were imposed
because the lawmakers were conscious of the fact that if this right was left unrestricted, it
could encourage vendetta. The restrictions were, therefore imposed on the exercise of right of
private defence. Observed Holloway J.:
The natural tendency of the law of civilized states
is to restrict within narrowing limits the right of self-defence.95

92 (1966) 1 All E.R. 62.

93 Shamshul Huda, Principles of the Law of Crimes in British India, (1982), p. 384.

94 J.W. Cecil Turner, Kennys Outlines of Criminal Law, (1966), p. 207.

95 In 7 Mad. H.C. Ap. 25 quoted in Kabiruddin v. Emperor, 35 Cal. 363.


Where the accused himself is an aggressor, he cannot claim any right of defence of person or
property. The right is restricted to offences against human body or property. It arises only
when a wrongful or unlawful act is an offence. In the case of defence of person, it must be an
offence affecting the human body but in the case of defence of property the offence
committed or attempted to be committed, must be theft, robbery, mischief or criminal
trespass.96 There can be no right of private defence, where there is no violation of a legal
right. It means that the right accrues only on commission of a crime. It is one of the
conditions precedent fro the exercise of right of private defence.
However, there are two exceptions to this rule: The acts which would not be offences by
virtue of certain exceptions contained in Chapter IV of the Indian Penal Code would be
considered offences for the purposes of exercising the right of private defence. As a result of
this, the right is available even against insane, intoxicated and the like, as they are incapable
of committing a crime with mens rea.
(ii) The right may be exercised even against the innocent person who has nothing to do with
the assault on the person exercising the right of private defence. In case of extreme necessity,
if a person is compelled to harm an innocent person, he commits no offence. For instance, if
the defendant is so situated that he cannot effectually exercise the right of private defence
without risk of harm to the innocent person, his right of private defence extends to the
running of that risk.
The right of private defence is subject to the restrictions laid down under Section 99 of the
Indian Penal Code. This Section also confers a protection upon the government servatns who
act in good faith under the colour of their office.
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities. In cases where there is no urgency and the danger is not
imminent and effective help can be secured by having recourse to the protection of the public
authorities, there is no right of private defence.
It is a necessary incident of the right of private defence that the force used must bear a
reasonable proportion to the injury to be averted, that is the injury inflicted on the assailant
must not be greater than is necessary for the protection of the person assaulted..

96 Chandra Bhan v. State, AIR 1954 All 39.


COMMENCEMENT

The right of private defence of body commences as soon as a reasonable apprehension of


danger to the body arises from an attempt or threat to commit an offence. In other words, the
law confers upon a person a right of defending himself against both actual as well as
threatened dangers. It is not necessary that there should be an actual commission of the
offence in order to give rise to the right of self-defence.

In Nga Chit Tin v. The King97 the accused left his hut after being threatened by the deceased.
Sometime afterwards the accused again returned to the hut on his own free will armed with a
heavy stick and struck the same on the head of the deceased, which resulted in death. On
these facts the Rangoon High Court held that when the accused was able to leave the hut
unhurt, there was no question of reasonable apprehension in his mind. But when her again
came back to the hut and struck the deceased, the exercise of the right of private defence by
the accused was not justified because the deceased committed no offence. It is immaterial
what kind of threat was advanced by the deceased against the accused but the apprehension
of danger to the body of the accused did not continue when he left the hut.

From this decision, it is evident that the right to private defence commences on a mere threat
to commit an offence and it continues as long as such danger continues.

Whereas a mere threat is sufficient in the case of an attack on the person, in the case of an
attack on property, there must be more than a mere threat. It must be threat which is so
imminent as to amount to an attempt to commit the offence.98

Continuance & Termination

After an evaluation of decided cases, it is evident that for the exercise of the right of private
defence of the body it is necessary that the reasonable apprehension of danger must continue
at the time when the impugned injury is caused. Ram Lal Singh v. Emperor99 illustrates the
right of private defence. In this case, a person was mobbed and the crowd entered the
building in which the accused had taken shelter. When a person saw this, he rushed in and

97 1939 Cri. L.J. 725.

98 Mohd. Rafi v. Emperor, AIR 1947 Lah. 375.

99 22 W.R. (Cr.) 51 c.f. supra. n. 11, p. 137.


brought out a gun and fired. It was held that he was justified because apprehension of danger
to the body continued. Thus, it is necessary to prove not only that the right has commenced,
but also that it has not come to an end.

Decided cases also reveal that the right to self-defence of body ends as soon as the danger has
passed out. In Emperor v. Ashrafuddin100 in the course of an altercation, the accused first
wrested the axe that the assailant carried and than gave repeated blows to the deceased after
he had been caught by his associate. The Court held that there was no right in these
circumstances because the apprehension of danger did not continue after the deceased had
been disarmed and seized by helper of the accused. From this decision it is evident that the
element of being disarmed is enough for termination of the right. The Punjab High Court also
held in Ranjit Singh v. State101 that there could be no right to private defence in a case where
the deceased started running away from the place.

Unlike the private defence of body under Section 102, Section 105 IPC prescribes different
periods of continuance for different offences against property.

When the offence against property consists of theft, the possessor of property enjoys the right
to retake his property till the offender has effected his retreat with the property, or the
assistance of the public authorities is obtained, or the property has been recovered.

There has been much debate over the interpretation of the term till the offender has effected
his retreat. There was much uncertainty even at the time of drafting and it was even
suggested that the privilege of this clause should operate till the offender is taken and
delivered to an officer of justice. Although, the meaning of the expression remains vague, the
Nagpur High Court is of the view that if the offender is retreating without property, the right
of private defence does not continue during his retreat. But, if the offender is retreating with
the property, the right continues during the retreat of the offender until the retreat is finally
effected.102 The Rajasthan High Court in Amar Singh v. State103 observed that the right would
come to an end when the offender has finally succeeded in finding an escape from the hot

100 1942 Cri. L.J. 450.

101 AIR 1957 Punj. 306.

102 Punjab Rao v. Emperor, 1946 Cr. L.J. 111.

103 AIR 1968 Raj. 11.


chasers. The Court added that it would depend on the circumstances of each case as to when
the offender can be said to have finally escaped from the hot chase of the searching party.

The right of private defence in case of theft also terminates when the property has been
recovered. One view supports the thought that the right continues even though the offender
has affected his retreat until the property is recovered.104 The other view holds that the right
does not continue after the offender has effected his retreat with the property.105 The relevant
clause of Section 105 does not use the word final retreat and any interpretation other than
that in the first view (Jarha Chamars case) would render the clause in the section or the
property has been recovered meaningless.

In Punjab Rao v. Emperor106 the Court held that the burden of proof lies on the accused to
prove that he had no time to have recourse to the public authorities before giving chase
personally and exercising his right. The question whether the victim of theft had enough time
to have recourse to the protection of the authorities is always a question of fact depending on
the circumstances of each case.107

In the case of robbery, the right 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 personal restraint continues. In the case of criminal trespass or mischief or
housebreaking by night, the right of private defence of property continues as long as the
offender is engaged in the commission of these offences. Law does not require that a rightful
owner in peaceful possession of his property should run away, if there is an invasion of his
right. Although law is not to make us cowards, the right is to be exercised in defence of
property and not as a pretext for aggression.

RESONABLE APPREHENSION OF DANGER


Reasonable apprehension of danger is one of the essential prerequisites of the right of private
defence. The apprehension should be reasonable to a man of normal state of mind. But what

104 Jurha Chamar v. Surit Ram, 7 Cri L.J. 49.

105 Mir Dad v. The Crown, ILR 7 Lahore 21.

106 1946 Cri. L.J. 111.

107 Kripa Ram v. Emperor, 1947 Cri.L.J. 503.


constitutes a reasonable apprehension of death or grievous bodily injury is always a question
of fact to be decided upon facts and circumstances of each case.

The source of the apprehension may be the weapon, the manner of its use, the mental and
physical attitude of the person uttering the threat, his capacity to execute the threat, etc. the
relative strengths of the combatants is sometimes relevant.108 Reasonable apprehension does
not extend to superstitious fears. It is not every idle threat that entitles a man to take up arms.
He must pause and ponder whether the threat is intended to be put into execution. There are
many occasions when people come across threats which were never intended to be taken
seriously. There are also threats which the person uttering them has no capacity to put the
same into immediate execution such as threats from unarmed women or weak persons to an
armed, strong man.

Thus, the evaluation of the reasonable apprehension requires the exercise of definite, yet
quick prudence on the part of the accused. In Mukhtiar Singh v. State of Punjab109 the Punjab
High Court asserted that reasonable apprehension depended upon the state of a persons mind
and also the situation in which he had been placed at the relevant time.

Thus, the right of self-defence is not based on the honesty or good faith of the victim of an
attack, but on the fact of reasonable grounds for his fear of death or bodily harm i.e. the fear
of a reasonable man in those circumstances. There is however, no standard of such reasonable
man. There is no test of the belief of a reasonable man whether an attack on him is with or
without felonious intent. He alone knows what he really believed. Others can only judge him
on the basis of what was apparent to an ordinary man at that time. Some courts in the USA
charge the jury to put yourself in the place of the defendant, would you have done as he did,
would you as judicious men believe what he believed and acted on it as he did. The rule is
that in determining whether an accused charged with having caused death or grievous hurt,
was in danger of death or great bodily injury so as to make his act justifiable on the ground of
self-defence the Court must view the circumstances from the accuseds standpoint at the time
they reasonably appeared to him.

State v. Wanrow110 is a landmark decision of the American Court with regard to womans right
to self-defence. Wanrow, a woman was charged for fatal shooting of William Wesler, a man

108 Ramzani v. State, AIR 1925 All. 319.

109 1975 Cri. L.J. 132.


whom Wanrow believed to be a child-molester. The court dealing with the test for reasonable
apprehension observed that the goal of traditional self-defence rules is to apply a subjective
test with which one should judge the defendants actions. With reference to female
defendants, the assumption in question was that the subjective standard was in relation to
how a reasonable man would have acted in the case. It was held that subjectivity must be
taken from the perspective of the accused in this case that of a woman. It was held that in
many cases where a man would not have had a reasonable apprehension of danger, yet it was
most reasonable for a woman in the same circumstances to validly utilise the right of self-
defence to protect her body/property from harm which was reasonable for her to do. Thus, in
this case the US Court further strengthened the plea that subjectivity must be applied as far as
practicable in cases of private defence.

Real and Immediate Threat

For the purpose of there being a reasonable apprehension, the threat must be real and
immediate. Only if it is so is the accused entitled to exercise the right to private defence.

The Lahore High Court, in Bishan Singh v. Emperor111 ruled that it is the accuseds
apprehension of immediate threat which is important and not the injuries suffered by him.
The test of immediate threat is belief in imminence of danger and is based on some
reasonable ground. Justification for culpable homicide in self-defence exists when there is
imminence of danger, the apprehension of danger is immediate and only against actual
assailants and not against possible assailants in the future.

In Mohd. Rafi v. State112 the Court ruled that when persons engaged in a lawful act saw the
aggressors moving towards them in a menacing attitude they need not wait till the latter
actually commence the fight. The Court added that they can themselves go ahead, meet and
attack them as the arrival of the aggressors meant a distinct threat of attack, causing
reasonable apprehension to the body.

In Canada the courts have adopted a somewhat similar approach in emphasising the
importance of real and immediate threat for the apprehension of danger to person or property.
110 Jenifer March, Womens self-defence under Washington Law, Washington Law
Review, Vol. 54, (1978-79), p. 235.

111 AIR 1929 Lah. 443.

112 AIR 1947 Lah. 375.


In R. v. Dioron113 where an awkward and intoxicated person was pursued by a man holding a
bottle and who had previously beaten him up, the pursued shot at him. Here the accused (the
man who was pursued) was having reasonable and probable grounds for belief that the
pursuer intended to strike him and had ability to do so.

In R. v. Moke114 it was held that real apprehension is needed for the plea of self-defence. The
Court further observed that it is no justification of homicide that the deceased had on
previous occasions abused and threatened the accused so as to make the latter apprehensive
either of being killed or of receiving grievous bodily harm, if at the time of the shooting, the
accused was well armed and he was in no immediate danger from the other who was neither
armed nor in a position threatening attack. Since there was no immediate threat, the accused
was not given the benefit of self-defence in the instant case.

Thus, it can be seen from the above decisions that for there to be a justified exercise of the
right to private defence, the threat to body/property must not only be real, but it also must be
immediate, needing the exercise of the right as a result of its immediacy.

Temperament of the Assailant

The temperament of the assailant is one of the prime considerations of reasonable


apprehension. It should be judged from all the surrounding circumstances, such as the
reputation of the deceased for a violent, dangerous or turbulent disposition and the existence
of tension of feeling and initial malice at the time of occurrence. In Kanbi Chhagan v. State115
the deceased was a man of violent and irresistible temper. He had served a sentence for
murdering his father. When he threatened the accused on his release from jail claiming a
share in the fathers property at once. He was in an excited state and threatened dire
consequences. The Court held that there was reasonable apprehension on the part of the
accused for picking up a shovel and hitting the deceased with it.

In Karamat Husain v. Emperor116 the deceased was a brute and a dangerous man who had
been suspected of murders. He was a village bully who had threatened everyone. He beat his

113 Canadian case c.f. supra. n. 11, p. 171.

114 Id.

115 AIR 1954 Sau. 34.

116 AIR 1938 Lah. 269.


wife, the sister of the accused, who rushed to him (the accused) for protection. She was
followed by her husband who insisted on beating her. The accused then seized a hatchet and
hit the deceased on the head and killed him. On these facts the Lahore High Court held that
there was reasonable apprehension in the mind of the accused for himself and his sister.

Thus, it is evident, after a perusal of judicial trends that the temperament of the aggressor is
of vital importance in determining whether there had been exercise of the right to self-
defence based on a reasonable apprehension.

The Judicial tests of Apprehension

Generally there are two types of tests that the courts take into consideration when going into
the reasonableness of the apprehension in the exercise of the right i.e. the objective and
subjective tests. However, in recent times there has also emerged a third, combining the two,
called the expanded objective test.

OBJECTIVE TEST

This test contemplates the response the response of the ordinary, standard and average person
placed in the same circumstances as the accused. The application of such a test means that
whenever an ordinary reasonable person believes that the conduct of another appears to be
the conduct of an aggressor and that the aggression is imminent, the accused can use any
reasonable amount of force, as such an ordinary reasonable man would use in the
circumstances, until the aggression is reasonably believed to have ended or the danger is no
longer present. In other words, the situation is assessed objectively in order to give benefit of
private defence to the accused.

Though this test does not take into account any of the subjective or psychological conditions
of the mind of the defendant, it accepts all physical, material and surrounding circumstances
to be those of the standard person. The mental state contemplated in this test is that of the
standard person as it would function in the mind of the accused and under the same physical
conditions.

This is the common law test also accepted in a majority of the states of USA as well as by the
Indian Courts.

SUBJECTIVE TEST
This is the traditional test of the American courts. The subjective test examines the mental
state of the accused, his or her own beliefs and feelings caused by the sway of the events,
without regard to any standard of reasonable conduct. In other words, the circumstances
under which the accused acted in the exercise of the right to private defence are ascertained
subjectively. It means the psychological feelings of the accused in the particular situation are
given due weight in the test.

Reasonableness of apprehension is attributed to the individualistic attitude of the accused in


the circumstances of the case, which sometimes, may lead to injustice. Subjective assessment
of the situation always pays dividends to the defender. That is why the courts are not in
favour of this test. However it cannot be denied that what was passing in the mind of the
accused (and thus the true mental state at the time) in the face of the aggression could be best
known only by him.

EXPANDED OBJECTIVE TEST

This is the offspring of the two above tests. It is also sometimes called the combination test or
a hybrid test. In this test, the inquiry is based on the individual as a person and is, therefore
subjective, but the test goes on further to determine whether or not the individual accused
acted as a reasonable person. The test requires that the accuseds belief, as to the various
elements of the right, appears reasonable to him or her. It is assumed that he or she is
reasonable. The accused is thus judged by his or her own standards of reasonableness.

This test has often been criticised as inaccurate and misleading. It attempts to look at the
psychological and individual state of mind of the defendant and then determine its
reasonableness according to the standards of reasonableness of that same individual. In the
balancing process of social interest versus social harm, this test contemplates the inclusion in
such balancing of subjectivity which leads to greater individualised justice versus objectivity
which by virtue of its generalisation and standardisation gives more stability to the law but
less personalised justice.

It is submitted that this new hybrid rule seems to combine the advantages of the two prior
tests and must get its fair trial in the courts, this approach being personalised and better suited
to meeting the ends of justice.

One of the much debated issues in connection with the right to private defence is whether a
person, in the light of aggression and consequent danger to body/property, has a duty first to
investigate the practicable possibility of retreating from the scene and avoiding the conflict
rather than actively defending himself using his designated right of self-defence.

The retreat rule had application in England in all cases of self-defence. However, it is evident
from English law that this rule will not apply where attack is made with intent to murder. This
has been summarised in Halsburys Laws of England which reads, A person lawfully
defending himself or his habitation is not bound to retreat or to give way to the aggressor
before killing him; he is even entitled to follow him and to endeavour to capture him; but if
the aggressor is captured or is retreating without offering resistance and is than killed, the
person killing him is guilty of murder.

Another important issue with regard to the retreat rule has been discussed in Juliens case117.
The main issue was whether a person who has been forewarned of an attack ought to leave
the place where he is. The court held that there is no duty to retreat until the parties are atleast
within sight of each other and the threat to the person relying on self-defence is so imminent
that he was able to demonstrate that he did not mean to fight.

Ordinarily the retreat rule forbade the use of deadly force by one to whom an avenue for safe
retreat was open. However, the modern trend is that a person who is attacked is entitled to
stand his ground and repel force by force.

In America, however, the matter has frequently considered, and in several justifications it has
been held that if one who, being without fault, is murderously assailed may stand his ground
and justifiably kill his assailant. On the other hand, in several jurisdictions it is held that if the
necessity of killing may be safely avoided by retreating, the party assailed must retreat rather
than kill.118

Today, the continental law is generally favourable to the right to stand ones ground. The two
reasons given for this are that a man cannot be constrained to take the risk even of a retreat
that seems safe and secondly, he cannot be obliged to yield is honour and dignity by retreat. 119
This view has been reaffirmed repeatedly in India in cases such as Mohd.Khan v State of
M.P.120 which held that the law does not require a law-abiding citizen to behave like a

117 [1969] 2 All E.R. 856.

118 Joseph Beale, Retreat from a murderous assault, Harv. L. Rev., Vol. 16, (1902), p. 573.

119 Supra., n. 11, p. 189.


coward, further holding that there is nothing more degrading to the human spirit than to run
away in face of danger.

The Amount of Force Which Can Be Used In Self-Defence


General
Another restriction on the exercise of right of private defence is that in no case this right
should be used to inflict more harm than that is necessary for the purpose of defence.
The violence inflicted must not be greater than is necessary for self defence. It must be
proportionate to and commensurate with quality and character of the act it is intended to
meet. It is so, because the right is for the protection and not for destruction.
The English Law Commissioners in their report observed:121
We take one great principle of common law to be that though it sanctions the defence of a
mans person, liberty and property against illegal violence, and permits use of force to
prevent crimes, to preserve the public peace, and to bring offenders to justice, yet this is all
subject to the restriction that the force used is necessary that is, the mischief sought to be
prevented could not be prevented by less violent means, and that the mischief alone, by or
which might reasonably be anticipated, from the force used, is not disproportioned to the
injury or mischief which it is intended to prevent.
In Jala Ram v. State of Rajasthan the Supreme Court observed:122
Private defence can be used to ward off unlawful force, to prevent unlawful force, to avoid
unlawful detention and to escape from such detention. So far as defence of land against
trespasser is concerned, a person is entitled to use necessary and moderate force both for
preventing the trespass or to eject the trespasser. For the said purpose, the use of force must
be the minimum necessary or reasonably believed to be necessary. A reasonable defence
would mean a proportionate defence. Ordinarily, a trespasser would be first asked to leave
and if the trespasser fights back, a reasonable force can be used.
The extent of harm required to be caused for self-defence varies from case to case and the
circumstances in which the defender is placed. It is difficult to lay down any fixed standard
for determining whether the harm is in excess or not. It would be determined by the facts of
each case.

120 1972 Cri.L.J. 661 at 665.

121 First Law Commission of India Report, (1879), p. 11.

122 Manu/SC/2184/2005.
Nature And Scope of Force: A Comparison
It is exceedingly difficult to explain precisely the nature of force, which a person uses in the
exercise of his right of private defence in order to defend his person or property. Indeed, it is
difficult to expect from a person exercising this right in good faith to weigh with golden
scales what maximum amount of force is necessary to keep within the limit. Every
reasonable allowance should be made for the bona fide defender if he with the instinct of
self-preservation strong upon him, pursues his defence a little further than may be strictly
necessary in the circumstances to avert the attack. It is unrealistic to expect a person under
assault to modulate his defence step by step according to the attack123
In Puran Singh v. State of Punjab, the Supreme Court said:124
It is not the law that a person when called upon to face an assault must run away to the police
station and not protect himself or when his property has been the subject matter of trespass
and mischief he should allow the aggressor to take possession of the property while he should
run to the public authorities. Where there is an element of invasion or aggression on the
property by a person who has no right to possession, then there is obviously no room to have
recourse to the public authorities and the accused has the undoubted right to resist the
attack and use even force if necessary.
The use of force and reasonableness of force are determined by two factors, (i) whether an
actual danger existed or was reasonably believed to exist which required their use, and (ii)
whether they were actually or reasonably believed to be necessary and appropriate. 125
According to Williams,126two conditions should be fulfilled for the use of force in the exercise
of right of private defence: (i) that the use of force is necessary to avert the danger, and (ii)
that the kind and amount of force the defendant uses is necessary.
A person who is in imminent and reasonable danger of losing his life or limb may inflict any
harm even death on the assailant when assault is attempted or directly threatened. This
principle is also subject to the harm or death inflicted to avert the danger is not substantially

123 Yogendra Moraraji v. State of Gujarat, AIR 1980 SC 660 .


124 AIR 1975 SC 1674.

125 Edward M. Dengel, Criminal Law, Boston, (1951), p.167.

126 G. Williams, Criminal Law, (1961), p.773.


disproportionate to the quality and character of the perilous act or threat intended to be
repelled.127 Justice Holmes vividly describes the law in this context as under:
Many respectable writers, agree that if a man reasonably believes that he is in immediate
danger of death or grievous bodily harm from his assailant, he may stand his ground, and,
that, if he kills him, he has not exceeded the bounds of lawful selfdefence.
This has been the decision of this Court.128
However, caution demands that genuine necessity to take the life of assailant in self-defence
must be proved.

Use of Deadly Force


Section 100 of the Indian Penal Code prescribes the extent of the right of private defence of
the body to the voluntary causing of death or any other harm to the assailant if the offence
which occasions the exercise of the right is such an assault as may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence. The Section reads as
under: The right of private defence of the body extends, under the restrictions mentioned in
the last preceding Section, to the voluntary causing of death or of any other harm to the
assailant, if the offence which occasions the exercise of the right be of any of the descriptions
hereinafter enumerated,
A person facing imminent threat of being assaulted is not expected to weigh in golden
scales the exact force required to repel the danger. The apprehension in the mind of the
accused that he would be assaulted by deceased who was armed with knife could not be
reasonably excluded and therefore, he was justified in stabbing deceased with knife in
exercise of self defense which was found to be fatal. In the circumstances, the case clearly
falls within Exception 2 of Section 300, IPC. The conviction of accused under Section 302 of
Indian Penal Code altered to one under Section 304, Part-I.73 The Right of private defence is
a right of protection and not of aggression. This right cannot extend to the inflicting of more
harm than it is necessary. Thus, if under the guise of such a right, the limits prescribed by the
law for the exercise of that right are exceeded and more harm than is really necessary is
caused, the act would become an offence. The right of private defence is an exception to the
general rule of criminal liability. The act which would, otherwise be an offence, will cease to
127 13 C.W. No. 1180.

128 Brown v. United States (1921) 256 U.S. 335 (343).


be an offence if it is done in self-defence. The right of self-defence is, therefore, required to
be pleaded by the person, who claims to have committed the act in exercise of such right.
But, even if the right is not pleaded, the Court may suo moto judge whether the act was done
in private defence.
The Supreme Court has favoured a trend of treating the right of private defence on a different
footing from other general exceptions on the question of proof. It has been repeatedly
observed that even where the right of private defence was not specifically pleaded, the Court
of its own can explore the possibility of giving advantage of the right to the accused.
Such a wide availability of this right will almost favour the accused who has not been for any
reason able to raise specific plea of right of private defence. This would make reference to
law of private defence vital for every instance of criminal liability.

THE RIGHT OF PRIVATE DEFENCE WHEN EXCEEDED


The effect of exceeding the right of private defence can be divided into two categories,
homicidal and non-homicidal. These fall under three categories. First, the cases in which the
accused bona fide for the purpose of self-defence uses force but on account of error of
judgement or due to loss of self-control in the heat of the moment or suddenness of the affair
causes more harm than is necessary. Second, those cases where unnecessary harm or injury is
inflicted after the apprehension of danger has ceased to exist. The third kind covers those
cases in which the conduct of the accused and the circumstances of the case reveal that the
accused intended to cause more than necessary harm from the very beginning. In the last
class of cases, the question of mitigation in view of the mala fides on the part of the wrong-
doer cannot as a rule be said to arise. In such cases the right of self-defence is only a cloak for
unjustifiable acts. In the second class of cases whether or not the question of mitigation
arises, depends upon the presence or absence of mala fides. The Canadian case of R. v.
Fraser129 illustrates the reasoning behind this position of reducing excessive self-defence to
manslaughter and not punishing for murder, holding that this defence (self-defence) reduces
the degree of liability not because of lack of intent because an intent to kill or injure, where
force is permissible, is less morally culpable than the intent to kill or injure recklessly under
other circumstances. Where the act is done in a spirit of revenge, reprisal or retaliation, or is
by its very nature extremely reckless or cruel it is hardly distinguishable from the acts falling

129 (1980), 55 C.C.C.(2d) 503 c.f. 23 Crim. L.Q. 329.


in the third category and there is no occasion for the courts to exercise leniency in such
matters.

The rationale for a middle ground between murder and successful exercise of the right of
self-defence is:-

some cases fall short of moral culpability normally associated with murder

Honest belief on the part of the accused that he is using reasonable force is inconsistent
with the mens rea required to establish murder.130

The second exception to Sec. 300, IPC, states that if the accused, in good faith, exceeds the
right to private defence provided to him in law, so long as there is absence of any sort of
premeditation as to the commission of the act and also no intention to do more harm than is
necessary for the purpose of the protection of the person or property in question, such
accused cannot be held guilty of murder but only culpable homicide not amounting to
murder.

The rationale behind this exception being made to murder is that such acts falling under this
provision are very closely linked with the law of private defence which is rightfully used. The
main reason for separating the two degrees of culpability of homicide in regard of acts
exceeding the right of private defence in good faith is that the law itself invites acts that are
on the verge of the crime of voluntary culpable homicide by providing the specific right of
private defence of person and property.131 The fact that the same or very similar act will get a
total reprieve under Sec. 96, IPC, reduces the culpability of all acts done in good faith
exceeding the right of private defence and resulting in death.

The right to private defence as a general exception is contained in Ss. 96-106, IPC. Under
these sections, the right to private defence extends to the voluntary causing of death to the
wrongdoer if the offence or attempt to commit the offence is of a certain description
enumerated therein. One of the requirements, however, is the existence of reasonable
apprehension of the consequences of the offence. Reasonable apprehension would mean that
any honest mistake as to circumstances, or as to amount of force required for the exercise of

130 Palmer v. The Queen, [1971] 1 All E.R. 1077 (PC).

131 Draft Penal Code, note M, pp. 146-7, c.f. K.D. Gaur, Criminal Law Cases and Materials
(2nd ed.) (Bombay, 1985), p. 434.
the right would have to be reasonable failing which it would amount to exceeding this right
and therefore an exception to murder, not a general exception.

Even Sec. 79, IPC has been interpreted as requiring a reasonable mistake, or atleast due care,
inspite of which a mistake is caused.132 The exception to Sec. 300 also requires good faith
i.e. due care as defined in Sec. 52.

The accused may make different types of mistakes. First, he may be mistaken as to the actual
situation. For example, he may think himself threatened by the deceased when, in fact, the
deceased in merely joking. Second, he may correctly understand the situation before him but
makes a mistake as to the quantum of force required to defend himself in the circumstances.
Third, the accused may be mistaken both as to the actual situation and as to the measure the
supposed situation requires to be taken.

An unreasonable apprehension therefore, would not be covered by the general exception, and
in order to fall within Exception 2 to Sec. 300, due care is a requisite. This exception to
murder, therefore, covers the situation of an unreasonable apprehension in good faith.

In contrast to this, British law133 allows for an unreasonable mistake to also fall within the
right of private defence holding that the accused is entitles to be tried on his actual beliefs and
not on the probable beliefs of a reasonable man in his position.

Common law generally demands reasonableness to be an essential characteristic of a mistake


as a defence. The right to private defence however, has been specifically excluded from this
trend in recent times as elucidated in the above-cited cases. Indian law, on the other hand,
under Sec. 79, IPC may allow for an unreasonable mistake, but for private defence
reasonableness has been made a requisite. Considering that the right to private defence is a
general exception because of a persons honest belief that he has a right to defend his person
and property, when there exists an honest but unreasonable belief as to circumstances, his
actions in those circumstances (as he believed them to be) should also be made a general
exception. This debate is based on the clash between the subjective and objective tests of
reasonableness.

132 Keso Sahu v. Saligram, 1977 Cri.LJ 1725, elucidates this proposition.

133 Williams, [1987] All E.R. 411, Jackson, [1984] Crim. L.R. 674, Fisher, [1987] Crim.
L.R. 334 (CA), Bedford v. R., [1988] A.C. 130, c.f. Michael Jefferson, Criminal Law,
(London, 1992), p. 207.
Therefore, the position in British law caters better to the philosophy of private defence as a
general exception.

The basic and essential characteristics of this exception are that although the person is not
expected to weigh, in golden scales, the amount of force to keep within the right, 134 there
should not be blatant excursion of the right. If there is such excursion, it would amount to the
exceeding of the right to private defence and would therefore not be a general exception.
Again, however, the accused must not be the aggressor or inflict injuries on the deceased
maliciously or vindictively and not in self-defence. 135 Therefore, Exception 2 to Sec. 300
covers a situation between a legal and justifiable right to private defence based on honest and
reasonable apprehension and blatant abuse of this right in order to intentionally inflict harm
on the other party. The exception envisages a person labouring under an honest but
unreasonable belief exercising so much force as is unnecessary under the circumstances but
doing so in good faith and without an intention to cause unnecessary harm. This mental
state is illustrated in the case of Vidhya Singh v. State of Madhya Pradesh 136 where the
Supreme Court held that when the appellant was encircled and assaulted, he in the heat of the
moment, fearing that he will be dealt with severely, went on attacking those who encircled
him and therefore, conviction under Sec. 304 was justified.

Considerable advantage has been taken of the vagueness of the term exceeding in the
exception. No quantum as to the amount of excess force used has been laid down.
Consequently, the courts have adopted a lenient position in this regard. Examples of this are
in cases like Tara Chand v. State of Haryana137 where even though the injuries inflicted on
the deceased could not be justified on grounds of defence of property, (even after the
deceased fell, he was injured in a vindictive and revengeful spirit) yet, it was held that the
right to private defence had been exceeded and Sec. 304 applied.

134 Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660.

135 Mohd. M.S. Hameed v. State of Kerala, AIR 1980 SC 108.

136 AIR 1971 SC 1857.

137 AIR 1971 SC 1891.


Similarly, in Nanhu Khan v. State of Bihar138, where serious injuries inflicted on the deceased
were not necessary for protecting property from him and the indiscriminate attack was
continued even after the deceased fell down while the accused received only minor injuries, it
was once again held that conviction would only be under Sec. 304 and not Sec. 302. Again, in
Ghansham Dass v. State (Delhi Admin.),139 the deceased had committed criminal trespass, but
he was not armed and no possible apprehension of death or grievous hurt to the accused could
have arisen. It was held that by using a dangerous weapon, the right to private defence of
property had been exceeded. The accused was hence held guilty under Sec. 304.

However, it is submitted that these cases do not take into account the specific inclusion of the
phrase without any intention of doing more harm than is necessary. A more apt decision can
be found in the case of Ladha Gova v. State140 where, when the accused on seeing the
deceased stealing his sugarcane fetched an axe and gave a blow on the head of the deceased
who immediately fell unconscious and was completely at the mercy of the accused, it was
held that after the deceased had fallen down it could not be said that the right of private
defence still continued and extended to inflicting two more fatal blows to the deceased so
sever and brutal as to lead to the inference that the accused had the intention to cause the
deceaseds death. This decision can also be justified on the ground that the mental element in
the right to private defence or even to the exception does not extend to such levels.

Thus, it is submitted that there is required a rethinking along new lines, possibly the
expanded objective test for ascertaining the liability under excessive exercise of the right to
self-defence. The foremost consideration however, should be that this right should not be
misused as a tool for premeditated murder with a sense of revenge. The sanctity of the right
must be protected and the jurisprudence behind its existence has to be appreciated to apply its
true content satisfactorily.

JUDICIAL DELINEATION OF EXCESSIVE SELF-DEFENCE


The right of private defence is a right of protection and not ofaggression and as such it cannot
extend to the inflicting of more harm than it is necessary for the purpose of defence. Thus, if

138 AIR 1971 SC 2143.

139 AIR 1979 SC 44.

140 AIR 1951 Sau 1.


under the guise of such a right, the limits prescribed by the law for the exercise of that right
are exceeded and more harm is caused than is really necessary, the act would become offence.
Section 99 of the Indian Penal Code provides that the right of private defence in no case
extends to the inflicting of more harm than necessary for the purpose of defence. The extent
of force and the infliction of harm which would be justifiable, depends upon the
circumstances of each case. The nature of the attack, the danger apprehended, the imminence
of the apprehended danger and the real ncessity of inflicting harm by retaliation for the
purpose of self-defence are all matters to be taken into consideration in deciding whether
141
the right of self-defence has been exceeded. Dominic Varkey v. State of Kerala is a
significant case on this point.
In this case there was exchange of words between George and his elder brother Dominic.
George took out a knife from his waist and Dominic bent down to pick up a stone. Before
Dominic could rise after picking up the stone, George rushed towards him and stabbed with
the knife. Dominic was again stabbed on the left thing by George and immediately thereafter
he ran away. This resulted in death of Dominic on his way to hospital. On these facts the trial
Court held that (i) the prosecution failed to establish beyond any reasonable doubt that
George was the aggressor and (ii) the incident happened in the manner alleged by the
prosecution. The trial Court gave the benefit of doubt to the accused and acquitted him. On
appeal the High Court held that (i) even if Dominic was the aggressor George had exceeded
the right of private defence (ii) the Courts reasonings were that Dominic was completely
unarmed and when Dominic stooped down and took a stone George could have reasonably
apprehended that Dominic would with the stone he had taken, cause minor injuries on him
and thus cause him simple hurt and not that Dominic would kill him or cause grievous hurt to
him. On appeal the Supreme
Court observed:
It is entirely a question of fact in the circumstances
of a case as to whether there has been excess of
private defence within the meaning of the 4th clause
of Section 99 of the Indian Penal Code, namely,
that no more harm is inflicted that is necessary for
the purpose of defence. No one can be expected to
find any pattern of conduct to meet a particular

141 AIR 1971 SC 1208.


case, circumstances must show that the Court can
find that there was apprehension to life or property
or of grievous hurt. If it is found that there was
apprehension to life or property or of grievous hurt
the right of private defence is in operation.
The person exercising right of private defence is entitled
to stay and overcome the threat.
The Court accordingly set aside the judgment of High Court and restored the decision of the
trial Court.
It is difficult to support the decision. First, the act of George by taking of the knife and
stabbing Dominic when he was trying to pick up a stone particularly when he did not even
actually pick up the stone would not by any stretch of imagination make Dominic an
aggressor. Second even assuming, without conceding that Dominic was an aggressor, it is
hard to agree with the decision that George did not exceed the right of private defence
because the second attempt of stabbing by George on the left thing was not only in excess of
self-defecne but it negates the very idea of self-defence. It is all the more so when Dominic
was unarmed and did not even possess the stone which he tried to pick up. We agree with the
observation of the High Court

Consequences of Excessive Private Defence


The legal effect in homicidal cases is that when the person exceeds the right and commits
what would, otherwise, have been the offence of murder, will be guilty of the offence of
culpable homicide not amounting to murder. Such culpable homicide is known as
manslaughter in the English Criminal Law. It is only, if there is a right of private defence and
when that right is exceeded, the offence of murder is reduced to culpable homicide.
Exception (2) to Section 300 of the Indian Penal Code provides : Culpable homicide is not
murder if the offender, in the exercise in good faith of the right of private defence of person
of property, exceeds the power given to him by law and causeds the death of the person
against whom he is exercising such a right of defence without premeditation, and without any
intention of doing more harm than is necessary for the purpose of such defence.
The culpable homicide is not murder, if the defender in good faith exercises the right of
private defence of person or property but exceeds the power given to him by law and caused
the death of the person against whom he is exercising such right of defence without
premeditation and without any intention of doing more than necessary for the purpose of such
defence.142
From the aforesaid provision, it is evident that an act done in excess of legitimate exercise of
the right of self defence and even if it has resulted in death of a human being will not amount
to murder but homicide not amounting to murder provided it fulfills the following elements:
(i) the defendant must act in good faith; (ii) he should act in the exercise of the right of self-
defence; (iii) he exceeds the power given to him by law in defending himself
or his property; (iv) there must be no premeditation for causing death, and (v) there must be
no intention of doing more harm than necessary for the purpose of such defence.
The English Law
Under the English Criminal Law, the use of force in self defence or the prevention of crime is
justifiable. The force used in defence must be not only necessary for the purpose of avoiding
the attack but also reasonable in the circumstances i.e. proportionate to the harm
threatened.143But if the defendant or the accused uses excessive force, he is guilty of murder.
The theory is that there may either be a complete defence or no defence at all. It is submitted
that this is an oversimplified view. If the action is taken upon an unreasonable mistake of fact,
it should amount at most to manslaughter, if the killing would have been reasonably
necessary. The defendants mistake of fact can be a defence even though it was
unreasonable.144
The American Law
Like England in America also there may either be a complete defence or no defence at all.
Thus, in cases of excessive force used in self-defence, the punishment of murder is awarded
to the accused. However, a new trend is emerging namely, where the aggressor used only
non-deadly force or began the fight with fists or some other non-deadly weapon and the
victim responded by using deadly force. This may be explained that the initial victims
response to the aggression was excessive and thus beyond the victims own right to self
defence.

142 The following illustration to exception (2) to Section 300 of the Indian PenalCode

143 Glanville williams, Text Book of Criminal Law, London, (1978), p. 475

144 Id. at 451


Here, the initial victim became the aggressor and the altercation became attributable to the
over-reaction of the initial victim.145 It is evident from the foregoing discussion that it is
difficult to lay down any yardstick to measure the force used in the exercise of right of private
defence. In other words Courts have, therefore, emphasized that the amount of force cannot
be weighed in golden scales. This is so because the basic principle of the right of private
defence depends upon the reasonable apprehension of danger for death or grievous injury and
the ascertainment of reasonable apprehension of danger on its turn depends upon various
factors. It is, therefore, difficult to draw a line between reasonable and unreasonable force to
be used in self-defence. It varies from circumstances to circumstances and the situation in
which the force is used in self-defence is generally assessed objectively.
Be that as it may, in India in the cases of excessive self-defence the offence of murder is
altered to culpable homicide not amounting to murder. In other words, death sentence is
reduced to life imprisonment. There is yet another trend which is emerging through judicial
legislation. It suggests that some provision should be made for payment of compensation to
the dependants of the deceased in cases of excessive self-defence.146
In other commonwealth countries like Canada and Australia, punishment for murder is
converted into punishment for manslaughter in such cases. However, in England and America
there is either complete exculpation or no exculpation at all for the use of force in self-
defence. In America, if the defendant uses more force than is necessary in self-defence, the
right of self-defence is reverted to the aggressor.147

WHEN THE RIGHT OF PRIVATE DEFENCE CANNOT BE CLAIMED

145 Sanford H. Kadish, Encyclopedia of Crime and Justice, New York, (1983), p.948

146 Yogendra Morarji v. State of GujAIR 1980 SC 660

147 Castillo v. State, 614 p. 2d 756 (Alaska 1980).


1. SUDDEN FIGHT

Decided cases show that the right the right of private defence is not maintainable to either
party in a sudden fight as it is difficult to ascertain the aggressor in such a situation. In Paras
Ram v. Rex148 there was a sudden quarrel with regard to the ownership of cattle. The
Allahabad high Court held that it was not a case of two persons having come predetermined
to fight and measure strength, but was a case in which there was bickering over cattle through
an exchange of abuses. This conferred no right on the deceased to attempt to strike the
accused in the first instance, but yet it was difficult to ascertain who the aggressor was in this
case and it was held that the accused could not avail of the defence of self-defence.

2. FREE FIGHT

In re Erasi Subba Reddi149 it was held that where there is a spontaneous fight between two
parties, each individual is responsible, for the injuries he causes himself and for the probable
consequences of the pursuit by his party of their common object. He cannot plead that
because he might at any moment be struck by some member of the other party his own blows
were given in self-defence.

However, in Jumman v. State of Punjab150 the Supreme Court held that where a mutual
conflict develops and there is no reliable evidence as to how it started and as to who was the
aggressor it will be correct to assume private defence for both sides. This brings up the
interesting issue of whether the statutory framework present in India enables two people in
conflict with one another to concurrently exercise the right to private defence as against each
other. In this case the vital aspect of one of them having to be the aggressor seems to be
missing.

3. AGGRESSOR INITIATOR OF THE ATTACK

The aggressor cannot claim the right of private defence. In Krishna v. The State151 the
appellant and his co-accused were the aggressors. The deceased inflicted blows on the co-

148 Paras Ram v. Rex, AIR 1949 All. 274.

149 AIR 1943 Mad. 492.

150 AIR 1957 SC 469.

151 AIR 1974 SC 244.


accused in exercise of the right of private defence. The appellant and his associate being the
aggressors could not take benefit of the right of private defence.

The question of who was the aggressor becomes important in cases where the plea of self-
defence is raised. The Supreme Court re-affirmed the law in 152 that a person who is an
aggressor and who seeks as attack on himself by his own aggressive act cannot rely upon the
right of self-defence, if in the course of the transaction, he deliberately kills another whom he
had attacked earlier. Thus, in deciding the question of sanctity of bodily interest the courts are
inclined to favour the ones who are victims of the initial aggression.

This decision brings out a paradox. It results in the situation where the accused, although the
aggressor cannot exercise the right of self-defence if the victim of his primary attack exceeds
his right to private defence. It is an important question which has not been addressed whether
the excessive self-defence can be taken as a freest aggression which causes a reasonable
apprehension in the primary aggressor of danger to his life by virtue of the misuse of the
right. It is submitted that although the accused has brought the decision onto himself there
should be no condonation for wilful and careless exercise of the right to self-defence, often
intentionally over-stepping the legal boundaries of the right. However, on the other hand the
decision of the Supreme Court in State of U.P. v. Ram Swarup153 is also most reasonable. It
held that the aggressor can avail of the right only in most exceptional circumstances, and that
he should first have made all efforts to escape from the situation already created by him,
thereby in a way negativing aggression.

4. ACTS OF PRIVATE DEFENCE

The right of private defence is not available against the act of private defence. The Supreme
Court in Munney Khan v. State of M.P.154 stated that the right of self-defence is available
against an offence, and therefore, where an act is done in exercise of the right of self-defence,
such act cannot give rise to any right of self-defence in favour of the aggressor in return. This
decision has been laid the groundwork for a number of successive cases reaffirming this view.

In this regard, the above mentioned debate over the right of self-defence of the initial
aggressor against the excessive self-defence of his victim is reopened. It cannot be disputed
152 1983 All. C.R.R. 355 (SC).

153 AIR 1974 SC 1570.

154 AIR 1971 SC 1491.


that an excessive exercise of the right of self-defence is an offence under the law. Hence it
must be the right of the accused to immediately defend his self in the face of such offence.
However, holding this view would lead to a number of practical difficulties as the
reasonableness of the first defence must be ascertainable objectively by the aggressor, and
secondly the law is not to encourage the commission of offences and does not seek to give
such an offender any additional rights.

5. WHEN THE ASSAILANT RUNS AWAY

The Courts have almost unanimously held that the right ends when the assailant starts
running away. The Supreme Court held in Jai Dev v. State of Punjab 155 that once the
aggressor runs away there was no danger either to property or the body of the accused an
longer and that the right could not be exercised.

In State of M.P. v. Saligram156 it was held that where the deceased was trying to run away
from the scene of the occurrence and the accused prevented him from doing so, the assault on
the deceased was unjustified.

Thus, this principle tries to reaffirm that private defence is a limited right meant to be used
sparingly, only when the danger to body or property exists and not after its termination.

6. AGAINST AN UNARMED OR UNOFFENDING PERSON

The right of private defence does not exist in the situations where the individual is unarmed
and unoffending including the intervener. Under such a circumstance, there would be no
apprehension of danger from such a person and as such there is no justification for exercising
the right of defence under such a circumstance.

In Mukhtiar Singh v. State 157 it was held that self-defence as a justification does not extend to
the causing of harm to an unarmed and unoffending intervener.

155 AIR 1963 SC 612.

156 1971 Jab. L.J. 292.

157 1971 Cri. L.J. 1049.


Many cases158 have held that when a person has fallen down on the ground, his weapon
already having been wrested from him, no case for exercising the right of private defence lay.

However, in Baburao Vithal Survade v. State of Gujarat159 it was held that there is nothing in
the law of private defence to suggest that the right of private defence of body cannot be
claimed against an assailant who is not armed with some sort of weapon. Thus, under
exceptional circumstances the right of private defence may be available even against unarmed
persons.

Thus, as society has progressed, the right of self-defence has needed streamlining and
constraint by use of these restrictions to become a universal and well-defined right.

COMPARATIVE ANALYSIS OF THE LEGAL SYSTEM OF THE US


AND THE UK
SELF-DEFENCE UNDER ENGLISH LAW

If the act alleged is done in self-defence, it is justified provided that no more is used then is
necessary for the purpose of defence. If an assault is threatened as by raising a hand against
another within a distance capable of the letter being struck, the latter may strike in his own
defence to prevent it, and although unnecessary violence must not be used. If a person strikes
at another, the person struck at is justified in using such a degree of force as will prevent a
repetition of the assault. A husband may justify a battery in defence of his wife, a master in
defence of his servant, a child in defence of his parent, and vice versa in each case. If the
violence used is excessive, or if it is used after the danger has passed or by way or revenge,
the assault cannot be justified.160
Necessary and reasonable force may also be used to prevent unlawful damage to chattels, or
to prevent their dispossession. According to Williams, 161 an authority on Criminal Law, it may

158 Ramesh v. State, AIR 1969 Tripura 53; Gurbachan Singh v. State of Haryana, AIR 1974
SC 496; Hari Meghji v. State of Gujarat, AIR 1983 SC 488.

159 1972 Cr. L.J. 1574.

160 Halsbury, Laws of England, Vol. X, (1973), p. 743.


be used even against a person who is known to claim the right to retain the goods, if the claim
is invalid.
5.4.3 Essential Conditions
The use of force and reasonableness of force are determined by two factors, (i) whether an
actual danger existed or was reasonably believed to exist which required their use, and (ii)
whether they were actually or reasonably believed to be necessary and appropriate.162
According to Williams,163 two conditions should be fulfilled for the use of force in the
exercise of right of private defence: (i) that the use of force is necessary to avert the danger,
and (ii) that the kind and amount of force the defendant uses is necessary.
A person who is in imminent and reasonable danger of losing his life or limb may inflict any
harm even death on the assailant when assault is attempted or directly threatened. This
principle is also subject to the harm or death inflicted to avert the danger is not substantially
disproportionate to the quality and character of the perilous act or threat intended to be
repelled.164
Thus, the cases of self-defence which were pardonable during the middle ages, have become
exculpable in the modern times. So, now no criminal liability is attached to the defendant in
such cases. It is a justifiable homicide, if committed se defendendo. This is in conformity
with the provisions of article 2 of the European Convention on Human Rights. The relevant
article runs as follows:
Every ones right to life shall be protected by law and deprivation of life shall not be
regarded as inflicted in contravention of this article, when it results from the use of force,
which is no more than absolutely necessary in defence of any person from unlawful
violence.

.As the common law system does not provide a statutory definition of self-defence, it is often
the opinions of legal authorities that are relied upon. Blacks Law Dictionary enumerates two
elements which are necessary to constitute self-defence, namely
1* accused does not provoke difficulty, and
161 G. Williams, Criminal Law, (1961), p. 476.

162 Edward M. Dengel, Criminal Law, Boston, (1951), p.167.

163 G. Williams, Criminal Law, (1961), p.773

164 13 C.W. No. 1180.


2* There must be impending peril without convenient or reasonable mode of escape.

On the other hand Glanville Williams analysis of the elements is more comprehensive:-

3* that the force is threatened against the person,

4* that the person threatened is not the aggressor,

5* that the danger of harm is imminent,

6* that the force threatened is unlawful,

7* that the person threatened must actually believe that a danger exists, that the use of
force is necessary and that the kind and amount of force being used is required in the
circumstances, and

8* That the above beliefs are reasonable.

To sum up, the notion of self-defence is justified in almost in every legal system today.

The right of private defence of the body extends, under the restrictions mentioned in the last
preceding Section, to the voluntary causing of death or of any other harm to the assailant, if
the offence which occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely:
Firstly, such an assault as may reasonably cause the apprehension that death will otherwise be
the consequence of such assault;
Secondly, such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly, an assault with the intention of committing rape;
Fourthly, an assault with the intention of gratifying unnatural lust;
Fifthly, an assault with the intention of kidnapping or abducting;
Sixthly, an assault with the intention or wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the
public authorities for his release.

Application of The English Law In Interpretation of Section 105 of


The Indian Evidence Act
Notwithstanding the express provisions in the Indian evidence Act relating to burden of
proof, the Courts in India have generally imported common law in interpreting the provisions
relating to burden of proof.
Gujju Lai v. Fatteh Fall,165is one of the earliest reported eases wherein the Full Bench of the
Calcutta High Court stated that with certain exceptions, the Indian Evidence Act was intended
to, and did, in fact, consolidate the English Law.
In the same year in Munchershaw Bezonji v. New Dhurumsey Spinning and Weaving Co.,166
West J. pointed out that the Indian Evidence Act was mainly drawn up from Taylor on
167
Evidence. The Full Bench of the Rangoon High Court again in Emp. v. U. Damapala
followed the decision of the Woolmingtons case and held that even if the evidence adduced
by the accused fails to prove the existence of the circumstances bringing the case within the
exception pleaded, the accused is entitled to be acquitted, if upon a consideration of the
evidence produced both acquitted, if upon a consideration of the evidence produced both by
the prosecution and the defence, the Court is left in a reasonable state of doubt, as to whether
the accused person is or is not entitled to the benefit of the exception pleaded. The Court
further observed that the decision of the House of Lords in Woolmingtons case was in no
way inconsistent with the law in British India,, and the principles laid down in that decision
formed a valuable guide to the correct interpretation of Section 105, Indian Evidence Act.
The Rangoon High Court again after five years in Nga Thein v. The King168 held that the
prosecution must show that there are no reasonable grounds on which plea of self-defence
could be believed to be true.
SELF-DEFENCE UNDER AMERICAN LAW

In America the law on this subject has emerge out of English common Law.
Like English law the various states statutes in U.S.A. draw a distinction between justifiable
homicide and excusable homicide in self-defence. When one, without any blame on his part,
is attacked by another in such a manner that he has a reasonable belief of suffering death or
grave bodily injury and kills in self-defence, believing such killing killed to be necessary to
protect himself, the result is a justifiable homicide. Thus, the right to kill extends even to case
of fear of grave bodily injury. But the essential elements are (i) blamelessness on the part of
the killer, (ii) a reasonable belief as to the existence of imminent threat and (iii) the necessity

165 (1881) 6 Cal. 171.

166 (1880) 4 Bom. 57

167 AIR 1935 Rang. 83: 38 CrLJ 524.

168 AIR 1941 Rang. 175: 42 CrLJ 661.


of the killing. Such right of self-defence has been called self-defence without fault or
perfect self-defence.
A survey of American cases reveals that American Courts have emphasised that one may
lawfully use that amount of force which is necessary under the circumstances. 169The force
used should be such as a reasonable person would have used under the circumstances.
Whether the forces used is necessary is said to be largely a question to be decided by the jury.
However, in the early period force amounting to killing or seriously wounding the assailant
was not permitted in the defence of property, but now even death may be caused in defence of
property. Courts, through judicial process, have held that homicide in defence of property was
justified, when committed in the prevention of a felony accompanied with violence.170
The next problem is the extent of the right, more specifically what facts are necessary to
enable this right to constitute a perfect defence when one coming to the aid of another kills in
the process. There are two distinct theories as to the extent of this right. The first is that the
defender stands in shoes of the third party. Courts generally support this view. This is to
majority rule there.171 The opposing theory is that one is justified in the homicide, if the
defender acting as a reasonable man believed that the person defended was in immediate
danger of death or great bodily harm and that the affray was not due to that persons own
wrong-doing.172 Since the stand in the shoes rule in defence of third person is in conflict
with the fundamental principle of criminal law that one cannot be guilty of criminal homicide
in the absence of criminal intent or negligence, it is submitted that it should yield to the rule
that one may kill the defence of a third person when he was a reasonable belief that the
person defended is in imminent peril of death of great bodily harm without fault on his own
part.173

169 Biship, Criminal Law Vol. I, (1923), p. 612.

170 Anne H. Woods, The use of force in defence of property, Kentucky LawJournal, Vol. 41 (1952-53), p.
461.

171 State v. Anderson, 22 N.C. 148 (1942).

172 State v. Harper, 149 M.O. 514 (1899).

173 James Daniel Cornette, Defence of third persons as excuse for homicideKentucky Law Journal, Vol. 39,
(1950-51), p. 463.
A person may generally kill to prevent the commission of a violent felony, if he reasonably
believes that such force is necessary to prevent the felony. The lethal force may, sometimes,
be used to subdue a man who is escaping from a valid arrest.174
Under every circumstance, the force used must be reasonable one. The reasonable force is
that degree of force which is not excessive and is appropriate in protecting oneself or ones
property. When such force is used, a person is justified and is not criminally liable .175The
prevailing position under American law is also very similar. Great importance is given to the
following concepts when dealing with the concept of self-defence.
9* requirement of reasonableness (a reasonable and honest belief is essential),

10* There must be the requirement that the harm or attack defended against be reasonable
regarded as imminent.

Only that amount of force should be used which reasonably appears necessary to prevent the
threatened harm.176
Thus, it can be seen that in the various legal systems of the world, there are certain common
established principles pertaining to self-defence. Excusable homicide in self-defence arises
where in sudden affray or combat, one fearing reasonably imminent death or grave bodily
injury, kills the other believing such killing to be necessary to protect himself. This is akin to
the se defendendo of common law. The law in this case presumes that both the parties were at
fault in some measure. It was for the existence of this fault in the killer that under old English
law death penalty was imposed for such homicide and later the penalty of forfeiture of goods
was imposed. Such kind of homicide in self-defence is called imperfect self-defence in the
American law.

There would be no right of self-defence where a person himself creates an occasion of killing
another. One cannot provoke a quarrel and then making an excuse of the quarrel kill
another.177 But mere words, however insulting they may be would not deprive one of the right

174 The New Encylopedia Britannica Micropaedia, Vol. IX, Chicago, (1977), p. 41.

175 Black's Law Dictionary, (1979), p. 1138.

176 Supra., n. 11, pp. 24-5.

177 Shack v. State, 236 Ala.667, State v. Fettovic, 110 Conn. 303.
to self-defence for such words would not be sufficiently, provocative.178 The question who
was the aggressor becomes important in cases where the plea of self-defence is raised and it
is not always easy to apportion blame in cases of chance- medley.

As a rule the aggressor is one who by his unlawful act or acts which are reasonably
calculated to cause or lead to deadly strife or to cause in another a reasonable apprehension
of immediate peril to his life, forfeits his right to self-defence.34 It is not necessary that the
one who struck first blow should be aggressor.35

If a person intentionally provoked an altercation maliciously intending or expecting that it


would develop into a deadly strife if actually results in killing, such person would be
aggressor and cannot take a plea of self-defence. But if such person, in the course of the
combat bonafide abandon it or withdraws there from, conveying by his words or conduct to
the other, of his intention of not continuing the fight or of withdrawing there from, his
intention of not continuing the fight or of with- drawing there form, his right of self-defence
will be revived. In such a case, if the erstwhile aggressor, who has withdrawn, is after the
withdrawal pursued, he may excusably kill in order to save himself. But the withdrawal
179
giving a revived right to self-defence has to be proved strictly by evidence. And if the
aggressor has so beaten up the other as to render him incapable of understanding or
appreciating the withdrawal, there is no revival of the right to self-defence.180

Phrases relating to the extension of the right of private defence to apprehension of bodily
injury less than death, employ such terms as great bodily injury or great personal injury.
Where such a phrase occurs, it is to be given its ordinary meaning.181

It is now an established principle of law that the right of private defence is not confined to
cases where death is feared, but it extends to cases where the danger to be resisted is serious

178 People v. Curtis, 18 N.W. 385.

179 State v. Health, 237 M.O. 255.

180 Rogers v. State, 60 Ark. 70.

181 Pond v. People, 8 Mich. 150


bodily harm of a permanent character,182so that where the statute does not contain a reference
to bodily harm as one of the
The American Law is similar to that of the Indian law on the subject. Like India there should
be no right of self-defence where a person himself creates an occasion and later resulting in
the necessity of killing another. One cannot provoke a quarrel and then making an excuse of
the quarrel kills another.183 But mere words, however, insulting they may be would not
deprive one of the right of self-defence,184 for such words would not be sufficiently
provocative However, it is widely agreed in U.S.A. that a self-generated necessity will not
support a claim of self-defence and as such the aggressor in an altenation is not entitled to act
in self-defence during that altercation. Several considerations might support this rule. First,
the sort of aggression which stimulates attack is undesirable conduct and as such it should be
discouraged.
Second, one who culpably begins altercation that creates the need for persons to defend
themselves can reasonably be regarded as blameworthy despite the need for self-defence. In
other words, the aggressor has demonstrated morally blameworthy conduct despite the
existence of necessity.185
A serious assault upon the victim constitutes the sort of aggression that deprives the actor of
the right to use self-defence in the resulting altercation. Air But the American Courts have
held in United States v. Peterson186 that any affirmative unlawful act reasonably calculated to
provoke an affray foreboding injurious or fatal consequences is also an aggression for
purposes of this rule. The Courts tend to deny a defence to those who appear responsible
for an altercation. Thus, in Mitchell v. United States 187after a quarrel in an apartment the
victim left, saying, you have whipped me one time. Now I am leaving. If you want me, I
will be outside. Since the victim indicated a willingness to avoid battle, the defendants
action in following the victim out constituted aggression, it seems clear that Courts are
182 Begham v. State, 203 Ala. 163. Brewer v. State, 160 Ala. 66; State v. Donnelly, 69, IOWA 705.

183 Shack v. State, 236 Ala. 667; State v. Feltovic, 110 conn. 303.

184 People v. Curtis, S.I.N.W. 385.

185 Sanford H. Kadish, Encyclopedia of Crime and Justice, New york, (1983), p.948.

186 483 F. 2d 1222 (D.C. Cir 1973).

187 399A. 2d 866 (D.C. 1979).


willing to find aggression in conduct without inquiring as to whether the conduct is
specifically and affirmatively prohibited by the criminal law Necessity is the basis of English
and American law of self-defence. The Indian law relating to the commencement and
continuance of the right of self-defence is in harmony with the English and American law.
Under the law obtaining in England and in many states of the United States of America, a
man may repel force by force in repelling attacks. He is not obliged to retreat but is entitled to
pursue his assailant till he finds himself out of danger. If in the conflict between them, he
happens to kill his adversary, such killing would be only a justifiable homicide, provided that
the offence by the adversary is accompanied with force and also that the killing was done in
self-defence i.e. to protect himself from imminent danger to his life. 188In America the right of
self-defence continues until the assailed has secured himself from danger. The right continues
as long as there is actual or apparent danger of attack, though the person whose attack is
feared is retreating. " In Smith v. State189 it was held that where the deceased without right,
appeared around the corner of a barn with a rifle in a shooting posture and was about to fire at
the defendant when the defendant shot him and knowing that the deceased was struck by the
first shot, fired two more, the Court should have charged at the defendants request that if he
had a right to shoot the first time in self-defence, he could continue to shoot until the danger
to his life had ceased. In Luckenbill v. State,190 ' the evidence tended to show that while
deceased and defendant were together in a room, the former attempted to draw his pistol to
shoot the latter, but had difficulty in getting it from his pocket and moved slowly towards the
door seeking constantly to get his pistol in a position to shoot. It was decided there that
notwithstanding such retreat, the defendant was justified in shooting the deceased while so
engaged in the attempt to use his pistol and that trial Court erred in charging the jury without
the proper qualification, that it was murder or manslaughter to pursue an adversary and kill
him while in retreat.

A comparison of the Indian Law with that of American law reveals thatboth the laws stand on
the same footing, because the principle of reasonable apprehension of danger is considered
to be the basis for its commencement and continuance in both the countries.

188 Hari Singh Gour, Commentaries of Indian Penal Code, Vol. I, 1966, SS. 96-97.

189 57 Tex, Cr. App. 455: 123 S.W. 698.

190 52 Ark. 45: 11 S.W. 963.


LOOPHOLES IN THE INDIAN LEGAL SYSTEM IN CONTEXT TO
RIGHT OG PRIVATE DEFENCE

Section 97 of the Indian Penal Code in its second clause has used the words any act which is
an offence falling under the definition of theft, robbery, mischief or criminal trespass which
obviously include all aggravated forms of the offences enumerated. However, in order to be
more clear and to resolve the controversy discussed above the law commission has proposed
to omit the words act which is an from the second clause of Section 97 which do not carry
any weight and has thus defined the right to defend property as follows:

Every person has a right to defend the property, whether movable or immovable, of himself
or of any other person against any other person against any offence which is or includes
robbery, theft, mischief or criminal trespass and any attempt to commit any such offence 191
The law commission report has further omitted the words Subject to the restrictions
contained in Section 99 of the Indian Penal Code with regard to the right to defend the
property under Section 97. These words have been omitted because the commission does not
think of any necessity of having recourse to authorities as the effective protection of public
authorities is generally delayed to such an extent that the very purpose of the Section is
defeated.192 Still the importance of the words Subject to the restrictions contained in Section
99 of the Indian Penal Code has not decreased. These words must be retained because the
force used should in no case be more than absolutely necessary for the purpose. If these
words Subject to the restrictions of Section 99 are omitted as has been proposed, the
citizens will be free to follow lynch law and cause any harm they wish, thus creating
lawlessness and chaos in the country. Moreover, the commission also in its proposal while
giving new shape to Section 99 have retained the words that force used in the exercise of
right of private defence should in no case extend to the causing of more harm than necessary
for the purpose of defence and has omitted the third paragraph of Section 99 of the Indian
Penal Code which speaks of having recourse to the protection of public authorities.

191 Law Commission of India: Indian Penal Code, 42nd Report, (1971), p. 107.

192 143 Law Commission of India: Indian Penal Code, 42nd Report, (1971), p. 101. 112
The first paragraph of Section 105 of the Penal Code provides that the right of private
defence of property commences as soon as a reasonable apprehension of danger to property
commences. This Section does not mention that such apprehension of danger may arise from
an attempt or threat to commit the offence. Such words are enumerated in Section 102 of the
Indian Penal Code which deals with the commencement and continuation of the right of
private defence of body. The law commissioners considered the suggestion to add these
words the apprehension of danger may arise from an attempt or threat to commit the
offence in Section 105 of the Indian Penal Code but rejected the suggestion as the absence
of these words are not creating any practical difficulty

There is no provision in the Penal Code or any other similar code in regard to the retreat rule.
In the absence of such provision, it might be relevant to see the views expressed by various
authors and decision-makers. Thus, while delineating the application of the principle Mayne
observed: But a man who is assaulted is not bound to modulate his defence step by step,
according to the attack, before there is reason to believe the attack is over. He is entitled to
secure his victory, as long as the contest is continued. He is not obliged to retreat, but may
pursue his adversary till he finds himself out of danger; and if, in a conflict between
them, he happens to kill, such killing is justifiable.193
The aforesaid view found the approval of the Madras High Court in Alingal Kunhinayan v.
Emperor.194Here the Court held that to say that the accused could have escaped further injury
by resorting to less violence or running away, would impose a greater restriction on the right
of private defence of the body. Indeed, it would place more restriction then that the law
requires. However, in Ram Sewak v. Emp.195,m the Allahabad High Court applied the rule of
retreat and observed:
Assuming that Ram Sewak picked the quarrel and tried to hit Baijnath, he ran for his safety
from the subsequent attack made on him by Baijnath and Kalka Singh. If after running some
distance, Ram Sewak found that he could not very well make his escape and if he turned
round and hit a blow, it must be said that he hit in self-defence. Ram Sewak might be
punished for having struck the first blow at the shop of Bhagwandin. But Kalka Singh and

193 John D. Mayne, The Criminal Law of India, (1904), p. 460.

194 ILR, 28 Mad. 454 (1905).

195 1925 All. 313, 26 CrLJ 542 at 542-43.


Baijnath Singh had no right to take the law into their own hands and chastises Ram Sewak by
trying to hit him with lathis. As a matter of law therefore, Ram Sewak would be, in my
opinion, justified in turning back and defending himself against an attack with lathis. I would
also mention that an attack with lathis was likely to create a reasonable fear of grievous hurt
being caused to Ram Sewak and Ram Sewak would be justified I striking with a lathis in
self-defence to the extent of causing grievous hurt or even death.
Further the Courts have passed the casual remarks regarding the retreat rule in State of
Karnataka v. Shivashanker,196 Rama v. State,197 State of Orissa v. Ghenu, and Balbir Singh v.
State,198 but did not lay stress on its observance. The Supreme Court in G.V.S. Subbrayanam
v. State of A.P.,199 observed:

The citizens, as a general rule, are neither expected to run away for safety when faced with
grave an imminent danger to their person or property as a result of unlawful aggression, nor
are they expected, by use of force, to right the wrongs done to them or to punish the wrong
doer for commission of offences. The right of private defence serves a social purpose and as
observed by this Court more than once there is nothing more degrading to the
human spirit than to run away in the face of peril. But this right is basically preventive and
not punitive.
Two years later, the Supreme Court re-affirmed its view in Mohd. Khan v. State of M.P.200 and
stated: The law does not require a law-abiding citizen to behave like a coward when
confronted with an observed by this Court there is nothing more degrading to the human
spirit than to run away in face of danger. The Supreme Court also mentioned this rule while
enumerating the principles and limitations of the right of private defence in Yogendra
Morarji v. State of Gujarat.201

196 (1978) 1 Kant.LJ 197.

197 1978 CrLJ 1843.

198 176 1978 CrLJ 262.

199 (1969) 71 PLR 504. AIR 1970 SC 1079 at 1087. See also 178 Munshi Ram v. Delhi AdmAIR 1968, SC
702 and Krishna v. State of Rajasthan. AIR 1962 SC.

200 1972 CrLJ 661 at 665 (SC).

201 180 AIR 1980 SC 660 at 666.


A survey of the aforesaid decisions suggests that barring the Allahabad
High Court, the Courts in India have not applied the retreat rule because the
right of private defence serves a social purpose. Further the law does not
expect a law abiding citizen to behave like a coward when confronted with an
unlawful aggression.
The Indian Penal Code202 has made specific provision in Section 99 embodying this principle.
It is as follows:
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
An analysis of the aforesaid provision reveals that there is no right of Whether a person has
time to have recourse to the public authorities
depends upon the following factors:
(i) The antecedent knowledge of the attack;
(ii) The precision and reliability of such knowledge;
(iii) Opportunity to give report to public authorities, and
(iv) Proximity of police station or other police with which report can
be lodged.
The first and foremost point for consideration is whether the accused had previous knowledge
or intimation of the attack. It is an established and well recognised fact that in case of
previous or antecedent knowledge, the accused is mentally prepared for self-defence and is
also mentally prepared whether in such situation he would take recourse to public authorities
or meet the challenge instead. In such a case of prior knowledge, the accused is normally
expected to have recourse to public authorities.
The second important factor for consideration is whether the so called antecedent
knowledge is at all reliable and precise. Every information cannot be reliable and should not
upset the balanced working of the mind of the accused. The source of such knowledge or
information is very material.
One should not feel panicky and prepare for war. The reliability and precision of
information or knowledge should be confirmed.
The third significant factor is, of course, the opportunity to approach the public authorities.
Taking it for granted, that the antecedent knowledge is there and it is reliable and precise, the

202 Indian Penal Code (1860), Clause 3 of Section 99.


important question is whether the accused had an opportunity. Could he get that much of time
or facility and means of communications?
The fourth important consideration, naturally, is directly linked with the third consideration.
It is the proximity or nearness of the police station or the public authority whoever is to be
approached. If the distance is such that the accused may not survive by the time of contacting
the authorities or the private defence where there is time to have recourse to the protection of
the public authorities. This restriction applies both to defence of person and to defence of
property. property may be destroyed in the meantime, the question of approaching the public
authorities becomes relatively unimportant.
There can hardly be a reply to all these baffling questions by saying yes or no. Each case
has to be judged on its own merit. And each case has its individuality and peculiarity. The
principles of one case in a general way may be applied in another case. But while convicting
or acquitting, the judge has to dive deep into the bottom of the various issues involved in the
right of private defence and then come to a conclusion whether applying the general
principles and considering the peculiar features of that particular case, the case of the accused
is covered by the right of private defence or not.
The above factors will not carry any weight in case in which the attack is sudden and
unpremeditated or where there was no facility for recourse to public authorities and also in
cases in which no help is forthcoming or it is materially delayed. Under such circumstances,
the person confronted with danger to his life and property can exercise right of private
defence without taking recourse to the public authorities.
In view of the above arguments, the law commission took the decision to delete the
restriction and observed:
As diverse views have been expressed, the choice between retention and deletion of the
restriction is not easy to make. We, however, think that from the practical point of view, the
balance lies in favour of deleting the third paragraph. The law may not encourage self-help
for doubtful ends, but self defence stands on a different footing. Experience shows that in
many cases it is debatable whether there was sufficient time for seeking the protection
of public authorities. Recognition of self-defence as a justification for committing an
offensive act is the assumption that detached reflection cannot be expected in face of the
uplifted knife. If so, the law should not expect a person to consider carefully whether there is
or is not sufficient time to seek the protection of public authorities. We have not been able to
discover any such stringent restriction on the right of self-defence in the criminal codes of
any other country. We recommend that the third paragraph should be deleted.203
As a result of the recommendation for the deletion of this restriction, in
the proposed Indian Penal code (Amendment) Bill 1972 it was removed but unfortunately
this bill could not become law as yet. The foregoing study suggests that the right of private
defence when it causes or is likely to cause damage to the person or property of another
person, must be restricted and recourse to public authorities must be insisted on. If a person
prefers to use force in order to protect his property when he could for the protection of such
property easily have recourse to the public authorities, his use of force is punishable under the
Indian Penal Code. No matter what the intention of that person may be, the law says that he
must not use force in such a case. To hold otherwise would be to encourage and put a
premium on defence of rioting which are so frequent in India. The country
would be defused with blood, if an offender who could get relief by recourse to law, is
allowed to take law into his own hands. However, if this restriction is applied all the time, the
danger would be that the assailant may escape or the property lost may never be recovered.
This rule is, therefore, not extened in all cases. If such recourse has little value or where
damage or loss is contemplated before the arrival of the public authorities, the aggrieved
person is not prohibited from exercising his right of private defence. Similarly, if the right of
self-defence has already arisen, it is not expected that the person entitled to exercise the right
should have recourse to the assistance of public authorities. He is entitled in view of the
immediate danger of injury to defend it by exercising his right of self-defence. He is not
expected to run for protection of public authorities, when he has actually been attacked. This
rule will, however not apply when there is advance information or knowledge of threatened
danger or invasion of ones right or if the danger is not so imminent.
It is submitted that it is high time to review the law on this point particularly in view of the
fact that the protection of public authorities is neither readily available nor adequately
provided for. Indeed, it may defeat the very object of providing this restriction. It is further
submitted that law should not expect a person to consider carefully whether there is or is not
sufficient time to seek protection of public authorities as laid down by the law commission.
Moreover, no such restriction on the right of self-defence exists in the penal law of other
countries.
The first tow clauses of Section 99 of the Indian Penal Code, 1860 lay down:

203 Law Commission of India: Indian Penal Code, 42nd Report, (1971), p. 103.
There is no right of private defence against an act which does not reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by a public
servant acting in good faith under colour of his office, though that act may not be strictly
justifiable by law.
From the aforesaid provision, it is evident that there is no right of private defence against an
act which does not reasonably cause the apprehension of death or of grievous hurt if:
(i) an act done or attempted to be done;
(ii) by a public servant or by the direction of public servant;
(iii) acting in good faith;
(iv) under colour of his office;
(v) though that act may not be strictly justifiable by law.
While the first clause, refers to acts of public servants themselves, the second clause refers to
acts of persons who are not public servants, but are authorised or directed by some superior
authority, who is a public servant. The second clause should be read with explanation II.
An analysis of these two clauses conjointly with the two explanations shows that three
conditions must be satisfied before a person is deprived of his
right of self-defence against the acts of the public servants, or of those acting under their
direction.
Firstly, the acts must be done in good faith;
Secondly, they must be done under the colour of their office; and
Thirdly, there must be reasonable grounds for believing that the acts were done by the public
servants as such or under their authority.
These clauses in favour of public servants are based on (i) the probability that their acts will
be lawful, in which case resistance to them must necessarily be unlawful; (ii) the theory that
resistance is unnecessary since the law will set right what has not been done lawfully, and
(iii) the ground that it is for the good of society that public servants should be protected in the
execution of their duty even where they are in error.204
The underlying principle for the deprivation of the right of self-defence against the acts of
public servants is that normally it is presumed that public servants will always act in strict
conformity with the law. Therefore, public policy demands that for the smooth working of the
state no obstacle should be placed in their way, when they in good faith purport to act as
public servants, although in the execution of the act they may not act in strict conformity with

204 Mayne, John D., The Criminal Law of India, (1904), pp. 203-04.
the law. At the same time, the public also have certain rights which require some safeguards.
That is probably the reason that two very important words, namely, not strictly justifiable by
law have been inserted after the words under the colour of his office.
The indication by these words is that when the non-conformity with the law amounts to a
non-compliance with the letter of the law as distinct from the spirit, the presumption is that
nobody would be seriously prejudiced by such non-compliance and if the public servant in
doing the act, has acted in good faith, there would be no right of self-defence against such an
act. But, on the other hand, when any fundamental right of the citizen is violated, such an act
will be deemed to have overstepped the limit of not strictly justifiable by law and therefore,
the citizen shall not be deprived of his right of self-defence against such an illegal act,
irrespective of the fact whether the public servant acted or gave the direction in good faith
or not. The reason is that by violating the law of the land, the act becomes illegal. Therefore,
it cannot be regarded as strictly justifiable by law.
Clause (i) of Section 99 merely says that the acts of public servant must be done in good
faith. If good faith is wanting, then the right of private defence would not be subject to the
qualifications laid down in Section 99 and the right of self-defence would arise, even if the
act does not reasonably cause apprehension of death or of grievous hurt. It is not permissible
in every case under the Code of Criminal Procedure, 1973 that a public servant can take hold
of a prisoner forcibly to get his body medically examined without his consent for the purpose
of qualifying some medical witness in the case against the accused and any such examination
without the consent of the accused amounts to an assault.205

Thus, the accused had right of private defence against the acts of the constables. The English
law on this question is also the same, which can be seen from the following passage in
Halsburys laws of England:206 The Law Commission has suggested that public servants
should be given complete immunity from all possible assaults which may be made on them
by persons in the exercise of right of private defence. The commission observed that the
public servants have no protection, if they are assaulted while executing order of Court which
had no jurisdiction. The fact whether the Court which passed the order executed by public
servant had jurisdiction or not is always arguable and is difficult to decide. In many instances,

205 Bhonder v. Emperor, AIR 1931 Cal. 601.

206 Halsbury Laws of England, Vol. X, p. 742


there can be no final view unless the matter is taken up to the highest Court. The subordinate
public servants executing the order should not be put in jeopardy of bodily injury so long as
his action is in good faith.207
The commission further observed that the extra-ordinary protection should be given only
when a public servant acts in exercise of what he considers to be the power conferred on him
by law. The existing provisions can protect public servants for their irregular acts and for
them there is no right of private defence. But the same cannot protect them for their actions
which are illegal, either owing to the absence of jurisdiction or any other ground. In such
cases the right of private defence will be available against public servants. Therefore, the
scope or protection should be enlarged to cover all the actions which are done by public
servants in good faith while executing the orders of the Court.208
It is evident from the above fact if the act done by a public servant is completely illegal or is
likely to cause on apprehension of death or grievous hurt or if his official character is not
known or notified, the exercise of the right of self-defence is permissible. The protection,
which are available to public servants also extend to those acting under their authority or
directions.
This is based on the principle that normally it is presumed that public servant will always act
strictly according to the law. The Public Policy demands that in the interest of smooth
working of state no obstacle should be placed in their way when they in good faith purport to
act as public servant, although while executing the act, they may not act strictly according to
law. It may be added that the law does not require a person to submit to any act of a public
servant,

207 Law Commission of India: Indian Penal Code, 42nd Report, (1971), p. 102.

208 Ibid.
CONCLUSION AND SUGGESTIONS

The right of private defence is basic to any society. It is now well established as a justification
for otherwise criminal conduct. Even the UN has recognised its importance as a universal
human right. It is however as sensitive an area as it is important.

The right of self-defence has not been treated with due precision. In the case of self-defence
pardons must not become automatic because it will lead to an absurd interpretation of law
and will abet and encourage homicide. The act done in self-defence should be shown to be
defensive and not offensive and there must be no flavour of revenge or retaliation in it, the act
being of a purely instinctive nature. The statutory provisions seem to be most suited to the
Indian circumstances and are clearly drafted. Nonetheless, this statutory right is given life by
the interpretation it receives. It is only through a comprehensive understanding of the
jurisprudence behind the general exceptions as justifications and the concept of self-defence
in particular that a dynamic and meaningful interpretation will arise. As Professor Glanville
Williams suggests, the force used in self-defence should be termed as protective force.
Such force may be used to ward off unlawful detention and to escape from such detention.209

With a changing society there always arises a need to adapt and modify the law to the
circumstances.

One of the innovative new approaches is of Richard Mahoney who believes that the
important stets of self-defence merits more seriousness. He believes that the defence is so
basic to the element of an crime that the concept of presumption of innocence must prevail
and the burden of proof should be shifted to the prosecution who would be required to prove
beyond reasonable doubt that the accused committed murder that was not undertaken in self-
defence.210 This approach is able to strengthen the respect and sanctity that criminal law gives
to the concept of sef-defence.

The Model Penal Code of USA 211 suggests a new approach. If an accused acts under a
mistaken belief that the action was justified in self-defence or defence of others but was
negligent or reckless in forming this conclusion, the accused is liable for any applicable
209 Glanville Williams, Text Book of Criminal Law (London, 1978) p. 449.

210 Richard Mahoney, The Presumption of Innocence- A New Era, Canadian Bar Review,
Vol. 67, (1988), p.1.

211 The Model Penal Code (USA, 1962), p. 952.


crimes for which negligence and recklessness is sufficient for liability. This introduces a new
form of culpability which could well be recognised in India to constrain the reckless, yet not
malicious exercise of private defence.

One other issue that needs further discussion with regard to excessive self-defence is the
Black or White but no Shades of Grey approach taken in Palmer v. The Queen.212 Therein, it
was held that in any given case an accused may either succeed or fail on the defence, there
being no middle-ground type of verdict. This is a most interesting approach which has not
really got sufficient recognition. This is propounded by those who believe that the concept of
excessive self-defence should be done away with. The defence being in the form of a right, it
may either be exercised successfully or not.

Parliament has always been receptive to change. It has even recognised the liberal scope of
self-defence, wherein the right covers defence of all persons irrespective of their relationship.
It includes anyone under a persons immediate protection. It has restricted the right where
necessary and expanded it where possible. As long as the legislator is able to judge the pulse
and needs of the society he seeks to protect, and remain dynamic in his approach, the law will
always be in touch with the people and lives will be in safe hands. A fair trial could be given
to the Expanded Objective Test, in place of the Objective or reasonable man test, as it
seems more just and keeps well within the framework of the jurisprudence behind the general
defences.

The respect for human life is an index of evolution of society and a well formulated
framework of laws governing this life and giving it its sanctity say much for its forwardness.
Thus, it is most important that a most basic right such as that of self-defence is not neglected
and that it is given its exalted and inalienable status that it has enjoyed down the ages.

The law of private defence embodied in the Indian Penal Code is based upon the English law,
but has been adopted with slight changes suited to the requirements of the Indian society. The
right of private defence cannot be claimed merely because an unlawful or wrongful act has
been done. That act should be an offence but also an offence as specified by Section 97 of the
code. The right of private defence can be exercised not only when any of the specified
offences is being committed but also when an attempt is made to commit the same or
reasonable apprehension of the same is there. No society can afford to provide an unqualified
right of private defence. The right of private defence has come to stay through legislative and

212 [1971] 1 All E.R. 1077 (PC).


judicial process. The denial of unqualified right of private defence does not however,
necessarily mean denial of the right where there is reasonable apprehension of danger to the
person or property and an access to state help may not be easily available. This right is also
available not only to the parties concerned but even to third person. The right of private
defence to property is not only available to the true owner of property but it is also available
to the trespasser who is in settled possession of the property213

In Puran Singh v State of Punjab214 the Supreme Court propounded the theory of settled
possession. This theory is not satisfactory because it provides better status to the trespasser
than that of the real owner. If the true owner of the property uses force to dispossess the
trespasser, he would be treated as a offender. This theory directly or indirectly supports the
anti-social elements. It is very difficult to agree with the theory of settled possession.
According to our view there should be duty to retreat. The retreat rule provides that a person
is attacked must, if possible, should avoid the deadly force against his assailant. Duty to
retreat is the part of human rights approach. In G.V.S. Subraiaanyam v State of A.P.215 the
Supreme Court stated that the accused can take the plea of right of private defence, though he
pleaded alibi. It is very difficult to support decision of the Supreme Court that the plea of
Private defence can be provided even if the accused has taken an inconsistent plea like alibi. It
is quite astonishing to know that if the plea of alibi has failed, the benefit of plea of private
defence can be availed of. The burden of proof to be discharged by the accused is not of the
same standard as required from the prosecution for establishing a case and the burden can be
discharged by showing a preponderance of probabilities in favour of that plea on the basis of
the material on record. The evidence adduced by the offender should be of such nature as a
reasonable man starts thinking that he would act in the same manner, if placed in the similar
circumstances. For claiming the right of private defence, the accused is not only to prove that
the right had commenced but also the right had not ended. The accused is also required to
prove that he has not exceeded the right had commended but also the right had not ended. The
accused is also required to prove that he has not exceeded the right. Merely the number of
injuries or the scrutiny of the medical certificate is not sufficient to decide whether the said

213 Puran Singh v. State of Punjab, AIR 1975 SC 1674.

214 AIR 1975 SC 1674.

215 AIR 1970, S.C. 1079.


right of private defence is exceeded or not. The accused is also required to prove that before
exercising such right, there was not ample opportunity to have recourse to the protection of
public authorities. It is also necessary for the accused to establish ownership or possession of
the property.

There is a great controversy whether the restriction, namely, there is no right of private
defence in cases in which there is time to have recourse to the protection of public authorities,
on the exercise of the right of private defence should be retained or removed or modified. 216 A
sufficient number of citizens of India consider the restriction enumerated in paragraph 3 of
Section 99 of the Penal Code to be necessary as there is already much disrespect for law and
order and the deletion of this restriction will encourage the people to commit more crimes and
consequently result in more lawlessness.217 An equal number of citizens hold the view on the
other side. They are not in favour of any such restriction on the exercise of the right of private
defence as has been mentioned in para 3 of Section 99 of the Penal Code because of the
present experience of uncertainty of getting timely and effective protection of the public
authorities when called upon.

The restriction, therefore, tends to deprive of the right of private defence itself and defeat the
very purpose of Section 99 of the Penal Code.218 Quite a few of the citizens are in favour of
some modification in the said paragraph, without indicating clearly the change to be brought
about. One suggestion being that the second para of Section 105 and para 3 of Section 99 of
the Penal Code should be combined together. The other suggestion is that the condition of
having recourse to the protection of public authorities should only apply when information
regarding the impending assault is received sufficient time earlier than the actual attack. 219
Law commission recommended that paragraph 3rd of Section 99 of the IPC should be

216 Law Commission of India, The Indian Penal Code, 42nd Report (1971), p.103.

217 Ibid.

218 Ibid.

219 Ibid.
deleted.220 However, 14th Law Commission,221 expressed its reservation about deletion of the
para 3 of Section 99 of the Penal Code suggested by the 5th Law Commission. It strongly
recommended for retention of the restriction.

If this paragraph 3 of Section 99 of the Penal Code is deleted, people will start settling their
disputes out of courts and cause harm to the others in the exercise of the right of private
defence even if the public authorities are present on the scene and are offering effective help.
The necessary corollary to the doctrine of the right of private defence is that the force used in
defence of person or property should be necessarily proportionate to the danger to be averted
or the danger reasonably apprehended and must not go beyond the legal purpose for which the
force is being used. It seems to be impossible to put down any hard and fast rule regarding the
quantum of force to be used in every case. It has to be determined according to circumstances
of each case. But a person attacked is not required to modulate his defence step by step,
according to the assault.

The words though that act may not be strictly justifiable have been interpreted uniformly by
the High Courts as covering only irregular and not wholly illegal acts of public servants. This
unanimous judicial view has produced certain awkward situations and has also placed the
public servants in a dangerous position while executing the orders of the courts. The judicial
interpretation has given the right of private defence against the acts of public servants though
done in good faith while executing the orders or judgements of a court of justice where the
court of justice was having no jurisdiction to issue such orders or judgments. Such acts under
Section 78 of the Indian Penal Code are not offences and public servants are immune from
prosecution for such acts. Though complete immunity from prosecution has been guaranteed
under Section 78 of the Indian Penal Code, yet public servants can be forcibly ejected or
injured under the shield of right of private defence under Section 99 of the Penal Code by the
person against whom the public servant attempts to execute the judgement or order of the
court. About the susceptibility of a study of the case law under the first paragraph of Section
99 shows how, in a large number of instances, public servants acting in execution of the
courts order have been badly injured, and the courts have acquitted their assailants on the
sole ground that the courts order was without jurisdiction. Whether an order of a court is
220 Law commission of India, The Indian Penal Code, 42nd Report, (1971), p.104.

221 Law commission of India, The Indian Penal Code, 146th Report, (1997), Para12, 24.
within its jurisdiction or outside its jurisdiction, is extremely difficult to decide, and, in many
instances, there can be no final view in this matter until the dispute is taken up to the highest
court. But a subordinate public servant executing that order should not be put in jeopardy of
bodily injury so long as his action is in good faith. Public policy also requires that such
protection should be given to facilitate
the prompt execution of the courts order. The orders of a court ought to be implicitly obeyed.
We, therefore, recommend the insertion of a new provision in Section 99 so as to make the
immunity from prosecution conferred by Section 78 co-extensive with the deprivation of the
right of private defence against such action in the first paragraph of Section 99. 222 injured in
the exercise of the right of private defence. Similar views have been expressed by the
commission regarding the acts of persons acting under the direction of public servants where
the private persons do acts under the orders or judgment of the court of justice, though that
court may not be having the jurisdiction to issue such orders or judgement.

The first paragraph of Section 105 of the Penal Code is silent about an attempt of threat to
commit the offence which words are enumerated in Section 102 of the Penal Code which
deals with the commencement and continuance of the right of private defence of body. The
law commission considered the suggestion to add the words the apprehension of danger may
arise from an attempt or threat to commit the offence in Section 105 of the Penal Code but
rejected the suggestion as the absence of these words are not creating and difficulty. 223 The
lawful exercise of the right of private defence of property against theft continues (a) till the
offender has affected his retreat with the property; or (b) the assistance of public authorities is
obtained; or (c) the property has been recovered. The expression till the offender has effected
his retreat with the property is very indefinite and vague.

Even the authors of the original draft of the Penal Code were not sure of the meaning of this
phrase. They suggested that the privilege of the clause should operate till the offender is taken
and be delivered to an office of justice. The courts have occasionally found it necessary to
point out that they are not easy of application. The Law Commission in their report have
considered this phrase and wanted to make slight verbal change. This could not be done
because of the fact that the commission could not find a better form of words to express the
222 Law Commission of India, The Indian Penal Code, 42nd Report (1971), p. 103.

223 Law commission of India, The Indian Penal Code, 42nd report, 1971, p.107.
idea. It is submitted that it is necessary to review the whole legislation and judicial decisions
with respect to right of private defence. The new provisions regarding the law of private
defence of person or property are long awaited to suit the social conditions and values which
have undergone drastic changes. The only change which in my opinion is not consistent with
the needs of the present society is the omission of paragraph 3 of section 99 of the Penal Code
which requires recourse to public authorities before the exercise of the right. This paragraph
could be replaced by a new paragraph as follows.

There is no right of private defence in cases in which the assistance of public authorities has
been provided.