LITERATURE REVIEW

RIGHT TO PRIVATE DEFENCE WITH REFERENCE TO

JUDICIAL CASE LAWS:
Introduction:
It is a right available to every citizen of India to protect
themselves from any external force that can result into any
harm or injury. In layman’s language it is basically a right of self
defence. It is mentioned in the sections 96 to 106 of Indian
Penal Code 1860.’Nothing is an offence which is done in
exercise of the right of private defence’- It implies any harm
done or injury caused to any person in the course of protecting
himself from the external force or harm is not an offence as per
Indian Penal Code 1860.
The right of Private defence has evolved in modern India but
initially it was proposed by an ebullient Macaulay 150 years ago
in his draft code with the aspiring task of empowering a “manly
spirit among the natives or locals. An ideal Indian in case of any
risk or danger would persevere and not be reluctant to protect
his own body or property, or that of another. He would react
with cautious power to avoid certain harms and injuries even to
the degree of causing death of someone.
In most common language it implies the use of generally or
otherwise unlawful actions in order to protect oneself or any
other individual, to protect property or to prevent any other
crime. Simply it can be termed as any action done in the course
of self protection. According to Article 51(a)(i) of Indian
Constitution the State is having a fundamental duty of the
state to protect public property and abjure violence. It implies
that it is the fundamental duty of the state to protect its
citizens and their property from any harm, and in case the aid
or help of state is not available and the danger is overhanging
and is unavoidable at the moment then the person is
authorized to use his force to protect himself from any harm or
injury. The term private defence is not properly defined
anywhere in penal code, it has generally developed and evolved
over the years by the judgments of the various courts. The main
motive behind providing this right to every citizen was to
remove their hesitation in taking any action (generally
illegal) to protect themselves due to the fear of
prosecution.
Section 97 states that the right of private defence is
available against the body and property only. Along with
this, Section 99 states the exceptions to the rule of
private defence. Both of these sections together lay
down the principles of the right of private defence.

The right of private defence against Body

Under section 97, every person has a right to defend his body
or of any other person or to defend against any offence which
affects the human body. The person can also exercise the right
against his property including both movable property such as a
car or jewellery and immovable property such as land or house.

The right of private defence against property:

A person can also exercise the right against the property of
other people along with his own property. The right of private
defence against property can only be exercised against offences
in the category of theft, robbery, mischief or criminal trespass
or against theft, mischief or house-trespass the person is under
reasonable fear of probable death or grievous hurt.
Every person has a right to dispose of his property and to throw
away any trespasser who enters into the property without
permission. But if the trespasser has the possession of the
property and the owner knows about it, the right of private
defence is not available to the owner. For example, tenant.
The right of self-defence against a trespasser is available till the
time the trespasser is actually on the land. If the trespasser
tries to dispossess the owner from the property, the owner has
the right to inflict such injuries over the trespasser to
dispossess him from the property. The moment the trespasser
is dispossessed, the owner’s right of private defence is expired
and he cannot take laws in his hands and injure the trespasser.
There are cases where the private defence is available against
the owner. If the person is in lawful possession of the property
and the owner tries to dispossess him from the property, the
possessor of the property has a right to exercise self-defence.
For exercising such right, following conditions needs to be
fulfilled [18]:
The trespasser must be in actual physical possession of the
property over a sufficiently long period.
The possession must be in knowledge of the owner, either
expressed or without any concealment of fact.
The process of dispossession of the true owner by the
trespasser must be complete and final.
In case of culturable land, if the possessor has grown any crop
on the land then none including the true owner has a right to
destroy those crops .
The right of private defence of property is available to prevent
theft, robbery, mischief or criminal trespass or an attempt to
commit any of these offences. Where the offence has been
committed or the act constituting the offence has ceased, the
right cannot be exercised.

Misuse:
It was granted as a right for self protection to every citizen of
India but it is often misused by many people by treating it as an
excuse of committing any crime or offence. It is a right granted
for defence and not for vengeance and may not be used as a
measure of taking revenge. This right of private defence is not
available against any lawful action i.e. when the actions of a
person are lawful and not resulting into any offence the right of
private defence can’t be utilized. Sometimes some people
provoke others to act in aggression and use it as an excuse for
the harm caused and even murder. But this can’t be used in a
situation where the aggression was shown by the accused only.
It is treated as license to kill by many people as the IPC is not in
clear on the situation where an attack may be provoked as
pretence of killing. But the court has asserted that the private
defence is available only to the persons who act in good faith
and don’t misuse ita as an excuse to justify their unlawful act or
act of aggression. it was further stated by the court “while
providing for the right of private defence, the penal code has
surely not devised a mechanism whereby an attack may be
provoked as a pretence for killing”.

Conclusion
Though the right of private defence was granted to citizens of
India as a weapon for their self defence this is often used by
many people for evil purposes or unlawful purposes. Now it is
the duty and responsibility of the court to examine whether the
right was exercised in a good faith or not. There are several
important points that the court will take into consideration
while making its decision:
1)Injuries caused by the accused
2)Injuries caused to the accused
3)Whether the state aid was available ( whether the accused
had time to contact the public authorities)
4)Accession of threat to his safety
Also the Indian Penal Code doesn’t properly define this right
and it has evolved over the years with judgments and decisions
of the Courts in various landmark cases as stated above for
example Munshi ram and others vs. Delhi Administration, State
of U.P vs. Ram Swarup and several other cases. But it is also
argued that the wordings of the sections need no further
clarification than has already been done by the courts as it was
the foresight of the legislature to grant such wide discretion to
the courts that they may cover within their ambit, the entire
gamut of situations which might arise and meet the ends of
justice.