PRIVATE DEFENCE

• Section 96 Penal Code:-

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• Section 98 Penal Code:-
– The person has the right of private defence against an act
which would be an offence, but it is not an offence because of:-
• Reason of youth
• Want of maturity of understanding
• Unsoundness of mind
• Intoxication of the person who committed the offence
• Misconception of fact
• Restrictions of the right:-
– It is under Section 99 where the right of private defence is
restricted to be used:-
• A public servant acting under his color of his office
• Acting under direction of public servant
• Time to recourse to public authorities
• Cause no more harm than necessary

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 Public servant acting under color office
• It is under Explanation 1
• There is no right of private defence against an act which does not
cause death or grievous hurt and it is done in good faith under
color of his office, though he may not strictly justified by the law.
• But it will not deprived his right if he knows or have reason to
believe that the person is a public servant
• Case: Bha’woo Jiva’ji v Mulji Daya’l
The conviction against the accused was reversed on the ground
that the accused was on duty and acting under his color of office
although he may not strictly justified by the law because he acted
in his good faith and his act was not cause the apprehension of
death or grievous hurt

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Act under direction of public servant
• It is under Explanation 2 and s. 99(2)
• There is no right of private defence when:-
– Act does not reasonably and does not cause any
apprehension of death/grievous hurt
– It is done under the direction of public servant or
attempt to be done under the direction of a public
servant and acting in good faith
– But it will not deprived his right if he knows or have
reason to believe that the person is acting under the
direction or he has authority in writing unless he
produce it when demanded
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 Time to recourse to public authorities
• It is provided in s. 99(3)
• When the accused has time to recourse to public
authorities, the right of private defence will be ceased
• Case: Morzuki Salleh (2004) 5 CLJ 127
The accused was charged for murder and the court held that
he has time to recourse to public authorities during the
second incidents and he did not do so. However, the decision
was reversed during the appeal and the court held that the
first and second incidents are separated although it was
connected with the first incident. When he was attacked
during the second incident, he has no opportunity to escape
and he has no prior knowledge and could not have expected
that he second incident would occurred.

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 No more harm than necessary
• It is provided by S. 99(4) Penal Code:-
– In exercise of private defence, the accused should
not inflicted more harm than necessary
Case: Halim Din (1999) 4 CLJ 15
The accused had fired the gun towards the
deceased during the raid because he thought that
the deceased was a member of a gangster group. But
the court held that the accused has exceeded his
right of defence in using reasonable forcewhen he
fired the gun because the deceased was only armed
with a piece of wood
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 Right of private defence may extends to causing death

• It is provided by s. 100
• The right extends to causing death or any harm to the assailants
where the offence is:-
– Assault reasonably causing the apprehension that death will otherwise be the
consequence
– Assault reasonably causing the apprehension that grievous hurt will otherwise
be the consequence
– Assault with intention to commit rape
– Assault with intention to gratify unnatural lust
– Assault with intention to kidnap or abduct
– Assault with intention of wrongfully confining a person under the
circumstances causing him to apprehend he will unable to have recourse to
public authority
• If the offence does not fall under s. 100, the right of defence only
extends to cause any harm except death:-s.101

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 Reasonable Apprehension
• S. 102 Penal Code:-
– The right commences as soon as a reasonable apprehension
of danger to the body arise from a an attempt or threat to
commit the offence, though the offence may not have been
committed yet
• The source of apprehension can 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 and etc.
• It is for the court to decide that the violence threatened
is sufficient to cause in the mind of the accused a
reasonable apprehension of grievous injury.
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• Case: R v Cumming where the court held that the
accused was not guilty when he fired the gun
towards the deceased when he saw the deceased
armed with the spear and pointing towards Dr
Middleton and in his mind he thought the deceased
intended to plunge the spear to Dr. Middleton
• Case: Wong Teck Choy where the court held that in
deciding whether or not there is apprehension of
death or grievous hurt, the weapon used, the
manner of using it, the nature of assault and other
surrounding circumstances need to be taken into
account.

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 Scope of Right
• The right commences as soon as apprehension of danger arises and it continues so
long as apprehension of danger to the body continues.
• The threat must be imminent and real and the person must feel a reasonable
apprehension o death or grievous hurt as a result of assault contemplated on him.
• Case: PP v Yeo Kim Bok (1971) 1 MLJ 204 : the court held that when a person has
assumed the threat is a dangerous form, he is allowed to use his right to defence
himself, and pursues his defence a little further than to perfectly cool by-stander.
The question is not whether there is an actual continuing danger but whether there
was a reasonable apprehension of danger
• A person is not deprived his right the moment the attack ceases because the
weapon used by an attacker has come to his possession
• Case: Musa bin Yusoff (1953) MLJ 70 the court held that the accused is entitled to
secure his victory as long as the contest still continues. He is not obliged to retreat
but may pursue his adversary till he is out of the danger and if in conflict he killed
the person, then it is justifiable. The accused was acquitted although he managed
to wrestle the knife from the deceased and stabbed the deceased in chest.

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• Case: Tony Beliang v PP (2003) 1 CLJ 482 : a person who faced the danger is not required to
retreat or seek refuge before he is permitted to exercise his right of private defence. He is
permitted to use all reasonable force to protect himself until he is free from danger.
• Case: Dato Balwant Singh (No. 2) (2003) 3 MLJ 395 : the court ruled that:-
– The right of private defence commence as soon as there is reasonable apprehension of danger to the
body of a person and the right continues so long as the danger to body or life exist.
– Although no man can be expected to assess with scientific accuracy the precise amount of force that is
necessary to defend himself from an attack, any retaliation in the exercise of it should not exceed what
is reasonably necessary to avert the assailant.
– A man who is about to be attacked does not have to wait for his assailant to strike the blow first. He
need not wait till he is actually attacked or inflicted with injury in order to react. He is not obliged to run
away, the law does not require the citizen to behave like a coward. If he is unable to escape he may turn
around and attack.
• Case: Ngoi Ming Sean (1982) 1 MLJ 24 where the accused was acquitted because there was
a reasonable apprehension of danger of life when he was cornered by the deceased although
the deceased was unarmed because they were struggling for the revolver during the fight.
• Case: Lee Thian Beng (1972) 1 MLJ 248 : the accused was charged for causing the death of
the deceased. The accused was a chief police officer who off duty and he did not introduce
himself during the quarrel with the deceased. The court held that the use of force is
unnecessary as the accused need only to introduce himself as the police to nip the argument.
There was also no occasion or opportunity that the deceased would aim the gun towards the
accused when what he did only to fire the gun into the air.

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 Limits of Right Private Defence
• The right of defence should not be converted into the right of reprisal.
• Case: PP v Abdul Manap (1956) 22 MLJ 214
There was a dispute between the accused and the complainant. The
complainant struck the blow first during the quarrel and in response
the accused grabbed a dagger and stabbed the complainant. The court
held the accused had to use reasonable force to retaliate to the attack
and to stop repeated blow but the court was not convinced that the
accused was really defending himself but more on teaching the
complainant a lesson when he had the nerve to attack the accused. It
is true that one does not have to use ‘golden scale’ to weight the
quantum of force but the frame of mind in which the force was
applied was of importance. The court entitled to infer what the frame
of mind was from the evidence and did not consider that the accused
was properly acting within the limits of private defence.

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• The right of private defence ceased when
there is no more danger or apprehension to
the body or life
• Case: Nachitin v State AIR (1993) 223
The right of defence has exercised at the time
since as soon as the assailant had left the hut,
the danger dominating the accused was over.

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 PRIVATE DEFENCE OF PROPERTY
• It is provided by s. 97(b) Penal Code
• It is subjected to the restrictions in s. 99
• It extends to cause the death or any other harm to the
doer if it falls under the offence listed in s. 103:-
– Robbery
– House-breaking by night
– Mischief by fire committed on any building, tent or vessel is used
as human dwelling / custody of property
– Theft, mischief or house-trespass as may reasonably cause
apprehension that death/grievous hurt will be the consequences
• If it does not falls under the listed offences in s. 103, it only
extends to cause any harm other than death as in s. 104.

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• There must be reasonable apprehension of danger
against the property but it must be imminent so as
to amount to commit an offence
• Case: Rafi v Emperor AIR (1949) Lah 375
The accused was not entitled to use the right of
defence against the property as the threat was not
imminent as there was no evidence that any
member of the party had made preparations to
carry on the threat in carrying the inflammable
materials or an attempt to set the fire. The accused
was guilty for causing the dead of one of the
member of the party when he shot the deceased.

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 Scope of private defence to property
• It is provided by s. 105 where it exists and continues:-
– For theft case, till the offender has affected his retreat with
the property / till assistance of public authorities is
obtained / till property recovered
– For robbery case, so long as the offender causes/attempt to
cause any person death /hurt/wrongful restraint/ so long as
the fear of instant death /instant hurt/instant of wrongful
restraints continues
– For criminal trespass case, so long as the offender
continues in the commission of criminal trespass/mischief
– For house-breaking by night, so long as house trespass
which has been begun by such house-breaking continues

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 Private Defence against Theft
• S. 105(2) Penal Code:-
– The right against theft continues until the offender:-
• Has effected his retreat with the property
• Till the assistance of the public authorities is obtained, or
• Till the property has been recovered
• Effected his retreat with property:-
– It can be said the offender can probably be said to have effected his retreat
with the property when he has once got clear off, having escaped
immediate pursuit or pursuit not having been made
– If the offender run away leaving the property behind, the right of private
defence against property would comes to an end. The owner is not justified
in pursuing him and assaulting him:- Case: Rakhia AIR (1934) Lah 595
– Case: Amar Singh v State of Rajasthan where the court held that the right
has comes to an end when the offender has finally succeed in finding ways
to escape from the hot chaser. It can be taken that the offeder has effected
his retreat and the right has ceased.

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• Assistance of Public Authorities Obtained
– Case: Kabiruddin v Emperor 35 Cal 368 where a
person prefers to use force in order to protect his
property but he has the opportunity to recourse
for public authorities, he should be made liable for
causing the harm.
– Case: Punjabro v King Emperor (1945) ILR where
in the court held that the accused has was not
entitled for the right of defence against the
property since he had a chance to seek for
assistance from the public authorities because he
had time to call his followers.

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• Property is Recovered:-
– It is dependent with the first condition which is
“the offender has affected his retreat”.
– The right of the accused has ceased when the
property has been recovered and the offender has
affected his retreat.
• Case: Jarha Chamar v Surit Ram (1907) 3 Nag
LR 177 where the court held that the
complainant had no right to forcibly take
possession of the camel after the offender had
reached his home with the stolen property.

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