Tuesday, 15 February 2022

The Right of Private Defence under IPC

 The Right of Private Defence under IPC

By Shweta Nair

The law does not expect its citizens to be cowards and even though it is a preposterous presumption to say that a person should be allowed to take the law in his own hands, certain situations can be envisaged where it can be justified that a person be allowed to do so. Man is endowed with this inherent right of private defence in order to safeguard one’s life, liberty and property. Thus, when there is no help from the state and a person is in danger from the suspect, it becomes necessary for the person in danger to use reasonable amount of force according to circumstances in order to defend himself or his property. However, it is very important that the law lays down clear cut circumscribing limits within which such right is to operate. 

The word ‘Defence’ contemplates two things- the subject matter to be defended and the aggression against which the defence is to be exercised. The law allows the right to Private Defence to be exercised in respect of the following six things: 

  • One’s own body

  • Another’s personal body 

  • Own movable property 

  • Another person’s movable property 

  • Own immovable property 

  • Another person’s immovable property. 

Body can be protected against any offence relating to human body and property against any offence which falls under the definition of theft, robbery, mischief or criminal trespass. 

The limitations to the right of Private Defence as follows: 

  1. The right of Private Defence is not available against a public servant (or a person acting under the directions of a public servant) acting in good faith under the colour of his office. 

Provided that the person knows that he is a public servant and there is no apprehension that death or grievous hurt would otherwise be a result. 

  1. There is no right of Private Defence if there is time to take recourse or seek the help of public authorities. 

  2. The right of Private Defence can be exercised only to the extent to which it is necessary for the purpose of defence and not more. 

The last point i.e., determining the extent to which such right can be exercised is of extreme importance and tricky to lay down. Here, the law has only prescribed circumstances under which the right of Private Defence can extend to the causation of death. In all other cases, the person defending can cause any other harm except death. 

The right of Private Defence of the body may extend to the causation of death if there is an assault as may reasonably cause the apprehension of: 

  • Death

  • Grievous hurt

  • Rape

  • Unnatural lust

  • Kidnapping or Abduction 

  • Wrongful confinement where there could be no chance of going to public authorities. 

  • Acid Attack (New Amendment) 

In any other offences apart from the ones mentioned above, it is limited to causing of harm and does not extend to causation of death. 

It is elaborated that the right of private defence to body as well as property commences as soon as apprehension of danger crop up from attempt to threat to commit an offence and continues till the time such apprehension of danger to the body or property continues.

The right of Private Defence of property may extend to the causation of death in case of the following offences or an attempt to commit any of them. 

  • Robbery

  • Housebreaking by night

  • Mischief by fire in any building, tent etc. 

  • Theft or Mischief or House trespass coupled with the apprehension that death or grievous hurt may be caused. 

In Yogendra Moraji v. State, various limitations and extent of such right was deliberated by the Supreme Court wherein it was held that there should not be any way of ebbing for a person in danger that is to prevent the commission of the crime besides affecting any harm or death on the attacker. This thing should be looked at carefully while analysing a case. 

In Jassa Singh v. State of Haryana, it was held by the Supreme Court that this right does not extend to the act of causing death to the person who caused such an act if it is trespass in an open land. Only a house trespass is covered under such act. 

Thus, the right of private defence is an essential right for each and every person. Protection of one’s own body and property is of utmost importance. 

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