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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

INDIAN PENAL CODE-1

TOPIC:
Right of Private Defence and its Judicial Interpretation

SUBMITTED TO SUBMITTED BY

Dr. Malay Pandey Anushi Saraswat

Assistant Professor (Law) Roll No-190101030

Dr. RMLNLU, Lucknow 4 SEM/ 2019-2024

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Contents

INTRODUCTION ................................................................................................................................. 5

Right of Private Defence (Section 96 to 106): Indian Penal Code 1860 ............................................... 6

Section 97: Right of Private Defence of The Body and Property .......................................................... 6

RIGHT OF PRIVATE DEFENCE OF PROPERTY ............................................................................. 9

SECTION 99– EXCEPTIONS OF RIGHT OF PRIVATE DEFENCE .............................................. 11

CONCLUSION .................................................................................................................................... 12
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ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced. Though
this project has been presented by me but there are many people who remained in veil, who gave
their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Dr. Malay Pandey, without the kind
support of whom and help the completion of the project was a herculean task for me.

I acknowledge my friends who gave their valuable and meticulous advice which was very
useful and could not be ignored in writing the project. I also owe special thanks to my parents
for their selfless help which was very useful in preparing the project & without whose support
this project wouldn’t have been prepared.
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RESEARCH METHODOLOGY

This topic “Right of Private Defence and its Judicial Interpretation” Researcher’s
observations and conclusions are based upon the secondary materials and this research
based on the intrinsic and extrinsic aspect of the paper. The methodology adopted by me to
draw conclusion about the topic is basically depended upon doctrinal research. The
Researcher took the help of various articles and various books. He also took help from text
books, magazines, public opinion but to a very limited scope which was basically a feedback
from his friends and the most non-exhaustive resource that is the Internet.
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INTRODUCTION

In the words of Bentham, "The Right of Private Defence is absolutely necessary for the
protection of ones life, liberty and property."

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 defence. According to Blackstone, “general
exceptions are defences that can be regarded as those circumstances where the prosecution
has been unable to prove all the requirements of liability beyond a reasonable doubt.”1

Sections 96 to 106 of the Indian Penal Code state the law relating to the right of private
defence of person and property. The provisions contained in these sections give authority to a
man to use necessary force against an assailant or wrong-doer for the purpose of protecting
one’s own body and property as also another’s body and property when immediate aid from
the state machinery is not readily available; and in so doing he is not answerable in law for
his deeds.

1
Blackstone’s Criminal Practice 2003, Peter Murphy (ed), Oxford, 2003, p 34.
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Right of Private Defence (Section 96 to 106): Indian Penal Code 1860

The law of private defence is based on two main principles -

(a) Everyone has right to defend his own body and property and others body and property.

(b) The Right of Private Defence is not applicable in those cases where accused himself is
an aggressive party.

Section 96: Things are done in private defence under IPC – Nothing is an offence which is
done in the exercise of the right of private defence under IPC.

Section 97: Right of Private Defence of The Body and Property

A person’s life and his personal property is very precious for anyone, no one can allow to take
their life and property easily. So, a person has a right of private defence in case of danger of
life to his body or any other person, against any offence affecting the human body and of his
property or property of any other person which falls under the category of theft, robbery,
criminal trespass, mischief.2

Example of right of private defence to defend the body of a person is suppose A, grazing his
cattles in forest, B suddenly came and start attacking on A, with a knife in aggression of
revenge. Here, A has right of private defence to protect himself from the attack of B.

Another example of right of private defence to defend his property is suppose A, has some
valuable goods with him and B tried to rob that good. Here, A has right of private defence of
property to protect his property or that property belong to any other person.

Thus, Section 97 provides the right to private defence in the following two circumstances:-

1. Right of private defence against the offence affecting the human body.
2. Right of private defence against the property.

YOGENDRA MORAJI VS GUJARAT STATE3- It was held by the court- accused has not
rightly exercised the right as it could be available only when accused may prove that he in
defence of himself or father’s caused the death of the deceased.

2
Rajpal v. State of Haryana, (2006) 9 SCC 678 : (2006) 3 SCC (Cri) 361
3
AIR 1980 SC 660
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An assaulter cannot claim for the right: The person who himself attacks someone cannot take
the plea of right of private defence.

The principle laid down in the case are-

1. The right can be used in the situation when there is actual and immediate danger of
body.
2. The right can be used under the restrictions given in section 99. Meaning thereby that
there no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
3. This is a right of defence, not the right to take revenge.
4. In using right, causing death can be justified if happened under section 100&103.
5. The right can be used against the offence described in IPC.

AKONTI BORA VS STATE OF ASSAM4 the court made clear that while using the right of
private defence against offence against property one has right to evict the trespasser and to
throw all that things which had been used by the trespasser while trespassing.

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

Section 100: When the right of private defence of the body extends to causing death – The
right of private defence of the body extends, under the restriction 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 them to 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:

4
1980 CriLJ 138
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Second – such an assault as may reasonable cause the apprehension that grievous hurt will
otherwise be the consequence of such assault:

Third – an assault with the consequence of such assault:

Fourth – an assault with the intention of gratifying unnatural lust;

Fifth – An assault with the intention of kidnapping or abducting;

Sixth – An assault with the intention of wrongful con confining a person, under circumstances
which may reasonably be caused him to apprehend that he will be unable to have recourse to
the public authorities for his release.

Thus, as per section 100 in the following six conditions, one can cause death in exercising his
right of private defence.

1. When there is the apprehension of death due to assault.

2. In apprehension of grievous hurt due to assault
3. Assault with the intention of rape
4. Against assault gratifying unnatural lust
5. Against assault with the intention of kidnapping or abduction.
6. Against the assault of wrongful confinement with the apprehension that victim will
unable to have recourse to the public authorities for release.

NABIA BAI VS STATE OF M.P.5 – The accused was a lady. The deceased assaulted her with
a knife; the lady also attacked the accused with a knife which resulted in death. It was held that
lady was protected under section 100.

SMT. VIDYASARM SHARMA VS SUDARSHAN LAL6 – Accused and deceased were in

the club. The deceased was intoxication and had beaten the accused as well which resulted in
the hurt of the accused. The accused in self-defence attacked on the neck of the deceased which
caused the death of the deceased.

GURIA BUCHHA VS STATE OF GUJARAT7- The attacker assaulted the accused of

unnatural lust. The accused in defence started hurting the attacker. The attacker falls down, but
accused continued beating till the death of the attacker. The decided victim was not benefitted

5
AIR 1992 SC 602
6
AIR 1993 SC 2476
7
AIR 1962 Guj 39
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by 100(4) as apprehension of unnatural lust came to an end at the moment the attacker fell
down.

Section 101: When such right extends to causing any harm other than death – If the offence be
not of any of the description 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 death.

Section 102: Commencement and continuance of the right of private defence of the body – The
right of private defence of the body commences as soon as reasonable apprehension of danger
to the body arises from an attempt or threat to commit the offence though the offence may not
have been committed: and it continues as long as such apprehension of danger to the body
continues.

Section 106: Right of private defence against deadly 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 defence be so situated that he cannot effectually exercise
that right without risk of harm to an innocent person, his right of private defence extends to the
running of the risk.

RIGHT OF PRIVATE DEFENCE OF PROPERTY

Section 97(2): this section provides the right of private defence against the crime of theft,
robbery, and mischief or criminal trespasses for self as well as for another person. Thus, if the
possession of the land of any person is being taken by someone he has the right to private
defence. The right of private defence of property can only exist in favour of the person who
possesses a clear title to that property.

Section 103: When the right of private defence of property extends to causing death – The right
of private defence of property extends, under the restriction mentioned in section 99, to the
voluntary causing of death or of any other harm to the wrongdoer, 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, namely-

1. Robbery
2. House-breaking by night
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3. Mischief by fire committed on any building, tent or vessel, which building, tent or
vessel is used as a human dwelling, or as a place for the custody of property
4. Fourthly – Theft, mischief, or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the consequence of
such right of private defence is not exercised. Meaning thereby that the section consists
of following ingredients which in right to private defence of property, death can be
caused:-
(i) Loot, Robbery
(ii) Housebreaking by night

JASSA SINGH VS STATE OF HARYANA8 – Right to private defence under section 103
exceeds to cause death if a crime has been committed. Trespass in open and does not give right
of private defence. The section authorizes victim for causing death if apprehension of body and
property of himself or others are there. Though dacoits have not been mentioned, for the
protection of property causing of death of dacoit is also permissible for the victim as dacoits
are the vast style of the loot.

Section 104: 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 extends, subject to the restriction mentioned in section 99, to the voluntary
causing to the wrongdoer of any harm other than death9.

Meaning thereby that under the right to private defence in relation to property, the exercise of
power is permissible to the extent it is required and not in excess otherwise it would be
considered as crossing the limit and defence would not be permissible.

Section 105: Commencement and continuance of the right of private defence of property
continues as long as the apprehension of danger of crime is there.

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

8
AIR 2002 SC 173
9
V. C. Cheriyan v. State of Kerala, 1982 Cri LJ 2071
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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 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.10

SECTION 99– EXCEPTIONS OF RIGHT OF PRIVATE DEFENCE

Section 99 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 colour of
his office, though that act, may not be strictly justifiable by law. 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 the direction of a public servant acting in good faith
under colour of his office, though that direction may not be strictly justifiable by law. There is
no right of private defence in cases in which there is time to have recourse to the protection of
the public authorities. Section 99 describes the following exceptions:-

1. An act was done by the public servant in good faith.

2. An act is done under the direction of a public servant in good faith.
3. Where there is no time to seek the help of public authorities.
4. Inflicting of more harm than it was necessary for the purpose of defence.

UTTAR PRADESH VS. NIYAMATH AND OTHERS11: In the matter of private defence
this is an important case. In this case, a person was cutting the neck of his wife, when his son
saw this he killed his father. Held that the boy in good faith believed that for protection of his
mother it was necessary to murder father hence his act was to be protected under the provision
of section 97(i).

Thus, if public servant knowing do any act beyond his jurisdiction then section 99 will not
invoke.

10
SRD Law Notes, https://www.srdlawnotes.com/2017/05/right-of-private-defence-section-96-to.html
11
1987 SCR(2) 953
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CONCLUSION

Right of private defence is given to every person to defend his body or of his property or to any
other person body or property. But the right of private defence is not absolute right it has certain
exceptions and if any act falls under these exceptions then the defence of right of private
defence shall not be entertained and the person will not allow to take the advantage of taking
the defence under the right of private defence. It is a mechanism and power that has been vested
in a private person's hands to protect himself and also his property when he/she is threatened
by the harm and fear of unsocial elements. The state has recognized that harm can come at any
point of time and there is a limitation to the working of the state. It cannot be there to take care
and protect the life and liberty of the masses round the clock. Therefore it is a tool which has
been placed in the commoner's hands and must be used reasonably. There is a thin line as to
when the right starts and when it no longer remains into play. One needs to keep in mind that
the right to private defence is not a right which has been given to use vindictively or
retributively. It is a right whose primary objective is the protection of self. The moment the
apprehension of harm ceases, the right also ceases.

Therefore all the ingredients need to be kept in mind so that there is no misuse of the right and
it does not become a tool for taking the law in the hand. At no point of time does one need to
think that the law has given a license but rather it needs to be appreciated that the state
recognizes that it cannot be available at all the junctures to protect the masses.