JAMIA MILLA ISLAMIA

2019-2020

SUBJECT: Indian Penal Code

TOPIC: Private Defence

SUBMITTED TO: Mr. Enam Firdos

SUBMITTED BY: Mohd. Altmash
BATCH:2017-2022
SEM: 4TH (Regular) Roll no.: 37
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 INDEX

Headings Page No.

Introduction 4

Historical Background 4-5

Pre-requisites 5

Nature of the right 5-6

Evolution of the right 6-7

Private defence in Indian 7-16

(Sections 96-106)

Private defence in various legal system 16-17

 Position in UK
 Position in USA
Conclusion 17-18

Bibliography 18

Referred Case Laws 19

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 Abstract
The state has the duty to protect its citizens and their property from harm. However,
circumstances may arise when the aid of state machinery is not available and there is
imminent danger to a person or his property. In such situations, a person is allowed to
use force to ward-off the immediate threat to his or someone else’s person or property.
This is the right of private defence. The people are endowed with this right so that they
can defend themselves and their property and not hesitate due to fear of prosecution.

The right, in some circumstances even extends to causing death of the person who poses
such a threat. But such a right is subject to some restrictions and not available in all
circumstances. It is only allowed when the danger to life or property is immediate and
the accused is not the aggressor. The right of private defence is not available against
public servants acting in exercise of their lawful powers. A person is allowed to use only
reasonable force; a force that is proportionate to the impending danger.

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 Introduction
Self-help is the first rule of criminal law. The right of private defence is absolutely
necessary for the protection of one’s life, liberty and property. It is a right inherent in a
man. But the kind and amount of force is minutely regulated by law. The use of force to
protect one’s property and person is called the right of private defence1.

This right is provided under Sections 96-106 of the Indian Penal Code (IPC) and state
the law relating to the right of private defence of person and property. However, this
right can only be exercised when the circumstances justify it and not otherwise.

In certain circumstances, the right of private defence also extends to causing death of the
person who poses such a danger. This right is provided under Section 100 of the IPC.

In order to avail this, there must be reasonable apprehension that death or grievous hurt
might be caused, or in case of assault with intention of committing rape, abducting,
wrongfully confining a person or when there is apprehension of throwing or attempting
to throw acid2.

Although the law permits causing of death in certain circumstances of private defence, it
ensures that the person does not exceed this right.

This right can only be availed when the danger or the threat is imminent and the force
applied must be proportionate to the danger.

Historical background
During colonialism, 150 years ago, an enthusiastic Macaulay proposed a right of private
defence in his draft code with the ambitious project of encouraging a ‘manly spirit’
among the ‘natives’. The ideal Indian would stand his ground in the face of danger and
not hesitate

1
B. M Gandhi, Indian Penal Code, 2ND Edition, Eastern Book Company, Lucknow, 2006
2
Soma Sarkar, Private Defense, 13 dec, 2018 available at: https://lawtimesjournal.in/private-defence-2/

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to defend his own body or property or that of another. He would respond with defensive
force to prevent certain crimes, even to the extent of causing death3.

As a general idea, the right of private defence permits individuals to use defensive force
which otherwise be illegal, to fend off attacks threatening certain important interests.
Like the defence of necessity, the right of private defence authorizes individuals to take
the law into their own hands.

Pre requisites4
This right therefore creates an exception to criminal liability. the right is available
against the aggressor only and it is only the person who is in imminent danger of
person or property and only when no state help is available.

 The force used in the defence should be necessary and reasonable in the
circumstances.
 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.
 The reasonable apprehension can only be justified

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 it5.

Nature Of The Right

It is the first duty of man to help himself. The right of self-defence must be fostered in
the citizens of every free country. The right is recognized in every system of law. It is
the primary duty of the state to protect the life and property of the individuals, but no
state, no matter how large its resources, can afford to depute a policeman to dog the
steps of every rouge in the country.6
3
Kudrat Agrwal, Private Defense in India, 4 feb, 2015 available at:
https://www.lawctopus.com/academike/right-private-defence/
4
P S A Pillai, Criminal Law, Lexis Nexis, 13th Edition, 2018.
5
Supra note 2.
6
Mohit Kumur, Private Defense: available to all Indians, available at:
http://www.legalserviceindia.com/article/l470-Private-Defence.html

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One thing should be clear that there is no right of private defence when there is time to
have recourse to the protection of police authorities. The right is not dependent on the
actual criminality of the person resisted. It depends solely on the wrongful or apparently
wrongful character of the act attempted and if the apprehension is real and reasonable, it
makes no difference that it is mistaken. An act done in exercise of this right is not an
offence and does not, therefore, give rise to any right of private defence in return.

Evolution of the Right of Private Defence7

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 that did not expose a person to punishment,
namely, justifiable and excusable. Self-defence was placed in the category of justifiable
homicide. In self-defence violence was lawful.

Under English law the status of the right of self-defence underwent a series of changes
through the ages. In the ancient period, there was absolute liability even for homicide
committed defendant. In the Medieval period, the theory of pardon developed and it
became excusable, whereas in the Modern Age, homicide committed in self-defence is
treated as justifiable, because it is presumed that such an act is not backed with evil
intent8.

Blackstone perceived the essence of excuses to be ‘the want or defect of will’. In

modern times, there is a presumption that there is no mens rea in the homicides
committed in self-defence and as such it has become a justifiable general defence in law.
Thus, now no criminal liability is attached to the accused in such cases9.

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

7
Mahesh Prasad Tandon, Indian Penal Code, Allahabad Law Agency, Faridabad, 2006
8
Supra note 3.
9
Supra note 4.

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 Private Defence In The Indian Legal System10
Jeremy Bentham said “This right of defense is absolutely necessary. The fear of the law
can never restrain bad men so effectually as the fear of the sum total to individual
resistance.” Take away this right and you become, in so doing, the accomplice of all bad
men. This right is based on two principles:

 It is available against the aggressor only, and

 The right is available only when the defender entertains reasonable apprehension.

There are three tests for ascertaining reasonable apprehension they are:

 The objective test: objective test emphasizes as to how in a similar circumstance

an ordinary, reasonable, standard and average person will respond.
 The subjective test: the subjective test examines the mental state based on
individual attitude.
 The expanded objective test: expanded objective test, being a combination of
aforesaid two tests, bases its inquiry to determine whether or not the individual
acted as a reasonable person.

Section 96: It talks about things done in private defence – Nothing is an offence,
which is done in the exercise of the right of private defence.

 Right of private defence cannot be said to be an offence in return.

 The right of self-defence under Section 96 is not, absolute but is clearly qualified
by Section 99 which says that the right in no case extends to the inflicting of
more harm than it is necessary for the purpose of defence.

It is well settled that in a free fight, no right of private defence is available to either party
and each individual is responsible for his own acts.

 Kamparsare vs Putappa11:

10
K. D Gaur, Indian Penal Code, 3RD Edition, Universal Law Publishing Co. Delhi, 2008.
11
1993 CrLJ 1709 Mad.

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Where a boy in a street was raising a cloud of dust and a passer-by therefore chased the
boy and beat him, it was held that the passer-by committed no offence. His act was one
in exercise of the right of private defence.

Section 97: It talks about Right of private defence of the body and of Property: –
Every person has a right, subject to the restrictions contained in Section 99, to defend-

First-His own body, and the body of any other person, against any offence affecting the
human body;

Secondly-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
for criminal trespass.

This Section divides the right of private defence into two parts, i.e. the first part deals
with the right of private defence of person, and the second part with the right of private
defence of property.

 Chotelal vs State12:

B was constructing a structure on a land subject to dispute between A and B. A was

trying to demolish the same. B therefore assaulted A with a lathi. It was held that A was
responsible for the crime of waste and B had therefore a right to defend his property.

 Parichhat vs State of M.P13:

A lathi blow on his father’s head, his son, the accused, gave a blow with a ballam on the
chest of the deceased. The court decided that the accused has obviously exceeded his
right of private defence.

Section 98: Right of private defence against the act of a person of unsound mind,
etc.—When an act, which would otherwise be a certain offence, is not that offence, by
reason of the youth:

12
AIR 1979 SC 577.
13
AIR 1979 SC 577.

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  The want of maturity of understanding,
 The unsoundness of mind or the intoxication of the person doing that act, or
 By reason of any misconception on the part of that person,

every person has the same right of private defence against that act which he would have
if the act were that offence.

Section 99: It lays down the acts against which there is no right of private defence: –
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 color of his office, though that
act, may not be strictly justifiable by law.

The first two clauses provide that the right of private defence cannot be invoked against
a public servant or a person acting in good faith in the exercise of his legal duty
provided that the act is not illegal14.

Similarly, clause three restricts the right of private defence if there is time to seek help of
public authorities. And the right must be exercised in proportion to harm to be inflicted.
In other words, there is no right of private defence:

 Against the acts of a public servant; and

 Against the acts of those acting under their authority or direction;
 When there is sufficient time for recourse to public authorities; and

The quantum of harm that may be caused shall in no case be in excess of harm that may
be necessary for the purpose of defence15.

 Emperor vs Mammun16:

It was held under Section 99 there is no right of private defence in cases where there is
time to have recourse to the protection of the public authorities.
14
Supra note 10.
15
Id.
16
AIR 1974 SC 577

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  Public prosecute vs Suryanarayan17:

It was held, that the officers had acted in good faith and that the accused had no right of
private defence.

Section 100: It specifies when the right of private defence of the body extends to
causing death: –

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: —

First-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 of wrongfully confining a person, under

circumstances that may reasonably cause him to apprehend that he will be unable to
have recourse to the public authorities for his release.

Seventhly – an act of throwing acid or attempting to throw acid.

Essentials of Section 100 of I.P.C. these four conditions must exist:-

 The person exercising the right of private defense must be free from fault in
bringing about the encounter,
 There must be an impending peril to life or of great bodily harm,
 There must be no safe or reasonable mode of escape by retreat,

17
AIR 1979 SC 989

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  There must have been a necessity for taking life

 Yogendra Moraji vs. State18:

The supreme court through Sarkaria, J. discussed in detail the extent and the limitations
of the right of private defence of body.

 Nand kishore lal v Emperor19:

It was held that the right of the accused to defend the woman against her assailants
extended under this section to the causing of death and they had, therefore, committed
no offence.

Section 101: It prescribes when such right extends to causing any harm other than
death:

If the offence be not of any of the descriptions enumerated in the last preceding section,
the right of private defence of the body does not extend to the voluntary causing of death
to the assailant, but does extend, under the restrictions mentioned in Section 99, to the
voluntary causing to the assailant of any harm other than death20.

 Mohinder Pal Jolly v. State of Punjab21:-

Workers of a factory threw brickbats and the factory owner by a shot from his revolver
caused the death of a worker, it was held that this section did not protect him as there
was no apprehension of death or grievous hurt.

Section 102: It is very important as it deals with the commencement and

continuance of the right of private defence of the body:

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

apprehension of danger to the body arises from an attempt or threat to commit the

18
AIR 1980 SC 660.
19
AIR 1924 Pat 789
20
https://indiankanoon.org/doc/1159920/
21
AIR 1979 SC 577.

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offence though the offence may not have been committed; and it continues as long as
such apprehension of danger to the body continues.

The apprehension of danger must be reasonable, not fanciful. For example, one cannot
shoot one’s enemy from a long distance, even if he is armed with a dangerous weapon
and means to kill. This is because he has not attacked you and therefore there is no
reasonable apprehension of attack. In other words, there is no attack and hence no right
of private defence arises. Moreover, the danger must be present and imminent.22

Section103: It specifies when the right of private defence of property extends to

causing death: –

The right of private defence of property extends, under the restrictions mentioned in
Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if
the offence, the committing of which, or the attempting to commit which, occasions the
exercise of the right, be an offence of any of the descriptions hereinafter enumerated,
namely23:

 Robbery,
 House-breaking by night,
 Mischief by fire committed on any building,
 Tent or vessel, which building,
 Tent of vessel is used as a human dwelling, or
 As a place for the custody of property,
 Theft,
 Mischief, or house-trespass,

under such circumstances as may reasonably cause apprehension that death or grievous
hurt will be the consequence, if such right of private defence is not exercised.

22
Supra note 10.
23
Supra note 4.

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Section 103 provides the right of private defence to the property whereas Section 100
is meant for exercising the right of private defence to the body of a person.

It justifies homicide in case of robbery, house breaking by night, arson and the theft,
mischief or house trespass which cause apprehension or grievous harm.

If a person does not have possession over the property, he cannot claim any right of
private defence regarding such property.

Right to dispossess or throw out a trespasser is not available to the true owner if the
trespasser has been successful in accomplishing his possession to his knowledge. This
right can be only exercised against certain criminal acts that are mentioned under this
section.

 Mithu Pandey v. State24:

The Patna High Court held that the accused were entitled to the right of private defence
even to the extent of causing death as the forth clause of this section was applicable.

 Jassa Singh v. State of Haryana25:

The Supreme court held that the right of private defence of property will not extend to
the causing of the death of the person who committed such acts if the act of trespass is in
respect of an open land. Only a house trespass committed under such circumstances as
may reasonably cause death or grievous hurt is enumerated as one of the offences under
Section 103.

Section104: It tells us when such right extends to causing any harm other than
death:

If the offence, the committing of which, or the attempting to commit which, occasions
the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of
any of the descriptions enumerated in the last preceding section, that right does not
extend to the voluntary causing of death, but does extend, subject to the restrictions

24
1967 CrLJ 102 (Pat).
25
2002 CrLJ 563(SC).

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mentioned in section 99, to the voluntary causing to the wrongdoer of any harm other
than death26.

This Section cannot be said to be giving a concession to the accused to exceed their right
of private defence in any way. If anyone exceeds the right of private defence and
causes death of the trespasser, he would be guilty under Section 304, Part II. This
Section is corollary to Section 103 as Section 101 is a corollary to Section 100.

 V.C.Cheriyan v. State27:

The Kerela High Court agreed that the Church people had the right of private defence
but not to the extent of causing death of unarmed deceased person whose conduct did
not fall under Section 103 of the Code.

Section105: It prescribes the commencement and continuance of the right of private

defence of property: –

The Right of private defence of property commences when a reasonable apprehension of

danger to the property commences. The right of private defence of property against theft
continues till the offender has affected his retreat with the property or either the
assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as the
offender causes or attempts to cause to any person death or hurt or wrongful restraint of
as long as the fear of instant death or of instant hurt or of instant personal restraint
continues.

The right of private defence of property against criminal trespass or mischief continues
as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as

long as the house-trespass which has been begun by such house-breaking continues.

26
Supra note 12.
27
1993 SCC 89

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Section106: It talks about right of private defence against deadly assault when there is
risk of harm to innocent person: –

If in the exercise of the right of private defence against an assault, which reasonably
causes the apprehension of death, the defender be so situated that he cannot effectually
exercise that right without risk of harm to an innocent person his right or private defence
extends to the running of that risk.

Landmark judgement on Private Defense

 Darshan Singh v. State of Punjab28

The Supreme Court laid down Guidelines for Right Of Private Defence for Citizens. It
observed that a person cannot be expected to act in a cowardly manner when confronted
with an imminent threat to life and has got every right to kill the aggressor in self
defense.

The Court declared their legal position under the following 10 guidelines29:

1) Self-preservation is a basic human instinct and is duly recognized by the criminal

jurisprudence of all civilized countries. All free, democratic and civilized
countries recognize the right of private defense within certain reasonable limits.
2) The right of private defense is available only to one who is suddenly confronted
with the necessity of averting an impending danger and not of self-creation.
3) A mere reasonable apprehension is enough to put the right of self-defense into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defense. It
is enough if the accused apprehended that such an offence is contemplated and it
is likely to be committed if the right of private defense is not exercised.
4) The right of private defense commences as soon as a reasonable apprehension
arises and it is co-terminus with the duration of such apprehension.
28
Criminal Appeal 1057 of 2002 http://indialawyers.wordpress.com/2010/01/17/supreme-court-lays-
down-guidelines-for-right-of-private-defence-for-citizens/ .
29
Supra note 10.

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 5) It is unrealistic to expect a person under assault to modulate his defense step by
step with any arithmetical exactitude.
6) In private defense the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.
7) It is well settled that even if the accused does not plead self-defense, it is open to
consider such a plea if the same arises from the material on record.
8) The accused need not prove the existence of the right of private defense beyond
reasonable doubt.
9) The Indian Penal Code confers the right of private defense only when the
unlawful or wrongful act is an offence.
10) A person who is in imminent and reasonable danger of losing his life or limb
may, in exercise of self defense, inflict any harm (even extending to death) on his
assailant either when the assault is attempted or directly threatened.

Private Defence In Various Legal Systems30

1) Position in United Kingdom

In England, a person is permitted to use only “reasonable force” in order to protect

oneself or others in case of a crime taking place inside his home. This has two
implications-

 protection in the heat of the moment and

 stop the intruder from running off.

However, no specific definition of reasonable force has been given. The reasonable
force is to be determined depending on the factual circumstances. If a person does what
he thinks is necessary at that spur of moment, he can be said to have acted well within
the law.

2) Position in United States of America

30
Tushar Sharma, Private Defense in Indian, 31 dec, 2018 available at: https://blog.ipleaders.in/privathe-
defence-under-ipc/

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Throughout U.S.A., the ability of the people to defend themselves vary from latitude to
latitude. For example, Florida in 2005 passed stand your ground laws. It means that
people are to stand their ground rather than retreating if they are of reasonable belief that
doing so will “prevent death or great bodily harm”.

Another doctrine governing defence laws is castle doctrine or defence of habitation laws.
It implies no duty to retreat before using a deadly force usually confined to a particular
place like home or business.

Landmark judgement:

In Beckford vs. the Queen31 it was held that

A defendant is entitled to use reasonable force to protect himself, others for whom he is
responsible and his property. It must be reasonable.

In case of Palmer v The Queen32, on appeal to the Privy Council in 1971 the concept of
reasonable force was defined:

The defence of self-defence is one which can be and will be readily understood by any
jury. It is a straightforward conception. It involves no abstruse legal thought. … Only
common sense is needed for its understanding. It is both good law and good sense that a
man who is attacked may defend himself. It is both good law and good sense that he
may do, but may only do, what is reasonably necessary33.

Conclusion
In general, private defence is an excuse for any crime against the person or property. It
also applies to the defence of a stranger, and may be used not only against culpable but
against innocent aggressors.

The defence is allowed only when it is immediately necessary-against threatened

violence. A person who acts under a mistaken belief in the need for defence is protected,
except that the mistake must be reasonable.
31
Privy Council Appeal No.9 of 1986.
32
[1980] 1 S.C.R. 759
33
RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE 173 (34th ed. 2014).

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The force used in defence must be not only necessary for the purpose of avoiding the
attack but also reasonable, i.e. proportionate to the harm threatened; the rule is best
stated in the negative form that the force must not be such that a reasonable man would
have regarded it as being out of all proportion to the danger.

Thus, we can see the right of private defence is very helpful in giving citizens a weapon
which in a case that it’s not misused is subject to certain restrictions, helps them protect
their and others’ lives and property.

Bibliography

Books referred:

1.) K. D Gaur, Indian Penal Code, 3RD Edition, Universal Law Publishing Co. ,
Delhi, 2008.
2.) P S A Pillai, Criminal Law, Lexis Nexis, 13th Edition, 2018.
3.) Mahesh Prasad Tandon, Indian Penal Code, Allahabad Law Agency, 2006.
4.) Ratanlal And Dhirajlal, The Indian Penal Code, 34th edition, 2014.
5.) B.M. Gandhi, Indian Penal Code, Eastern Book Company, Lucknow, 2006.

Online sources:

1.) https://lawtimesjournal.in/private-defence-2/
2.) http://www.legalserviceindia.com/article/l470-Private-Defence.html
3.) https://blog.ipleaders.in/privathe-defence-under-ipc/
4.) https://www.lawctopus.com/academike/right-private-defence/
5.) https://indiankanoon.org/doc/1159920/

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 Referred Case laws

 Kamparsare vs Putappa
 Chotelal vs State
 Parichhat vs State of M.P
 Emperor vs Mammun
 Public prosecute vs Suryanarayan
 Yogendra Moraji vs. State
 Nand kishore lal v Emperor
 Mohinder Pal Jolly v. State of Punjab
 Mithu Pandey v. State
 Jassa Singh v. State of Haryana
 V.C.Cheriyan v. State
 Darshan Singh v. State of Punjab
 Beckford vs. the Queen
 Palmer v The Queen

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