Private defense – Adv. Saleem Ansari
New Delhi : Read and comment answer written on Private Defense by Adv. Saleem Ansari Judicial Service Aspirants .
Question 1. Explain the right of private defense of the body and mention the circumstances in which this rights extends till the death of the aggressor? (500 words)
Answer . Right to private defense of the body – Every person is right to protect his body, property or other’s body, property from any external invasion. You can use your physical strength to suppress the attack if necessary.
As per section 96 of Indian Penal Code 1860– Any act which is used in the rights of private defense is not an offense.
According to Section 97 of Indian Penal Code 1860 – Right to private defense of body and property – Subject to the restrictions of Section 99, every person in India has the rights to ;
- Body- whether its own or another’s
- Property – be it own or other’s (movable or immovable)
Or (crimes like theft, robbery, mischief, criminal trespass)
Can use the rights of private defense to protect.
Section 99- Restrictions and Limitations- Work against which there is no right of private defense –
- If any work is done by a public servant or 2. In good faith by his direction, while working in his office,
Whereby the fear of death or harm is not properly caused, there is no right of private defense against that work even if the act is not justly lawful.
- Where there is sufficient time to assist the public authorities for protection,
- Suffering can be inflicted for self-defense as much as for safety.
Section 99 Section –
- Work by public servant
- Work by the direction of the public servant.
- Having enough time
- Additional Abduction
Explanation 1. No person is deprived of the right of private defense against work done by public servant.
Condition – If-
(1). He does not know that the person doing the work is a public servant
(2) He does not have reason for this
Explanation 2. No person is deprived of the right of private defense against work done by the instruction of a public servant,
Condition – if –
(1) he does not know
(2) Nor does he have reason to believe that the person is acting under the direction of the public servant,
(3) The workman is not told that he is working under instructions,
(4) He should not produce such written authority on demand.
Extends of the rights to private defense – The right to private defense extends to the extent that it is necessary according to the circumstances.
Example- A shoots B for a reason unintentionally, so B does not have the right to shoot at A to protect his body.
He can do some mild injury to protect him so that he can get rid of A.
When does the death of the aggressor extend to the rights to private defense of the body –
As per Section 100 of the Indian Penal Code-
Subject to the restrictions of section 99, the right of private defense of the body is extended till the assailant (assailant) voluntarily commits death or other abduction if the offense is of any of the following types.
When can the death of the person in front work
First– Death (when there is a reasonable fear that the attack will result in death) ;
Second – Grievous hurt (when there is a reasonable fear that the attack will result in serious injury);
Third- The intent to rape;
Fourth – Intended to satisfy unnatural lust ;
Fifth – An Assult with the intention of kidnapping and abducting ;
Sixth – An assult with intention of wrongfully confining whereas there is not enough time to seek the help of public authorities;
Seventh- throwing or trying to execute (acid).
Added by the Penal Law Amendment Act, 2013 (3-2-2013)
Note- The law empowers a person who has a reasonable fear that his life is in danger or that his body is likely to be severely injured, as long as he is being attacked or about to be killed by his killer.
Important Cases –
Jayadev v. State of Punjab (1963), I CRL.J 495
In this case, it was said that the amount of death in private defense cannot be determined, it is not possible to define it.
Ajmat Khan v. State, A.I.R 1952 SC 165
In this case, the Supreme Court determined that the force used in the exercise of the right to private immunity was necessary in such a quantity that no facts of any case were weighed in gold scales.
Ghiriya Bhav Ji (1963) I C.R.L.J 431
The mere fear in the mind of the accused that he will be killed by witchcraft is improper. The rights to private defense against such apprehension is not obtained unless there is a possibility of physical attack from the enemy.
Jayaprakash v. Delhi Administration, (1991) 2 SCC 32
It was said in this case that no matter of the exchange of words of conversation, no matter how hot it is, there is no possibility of death. It will not be applicable any clause of section 100 .
According to Section 102 – Start and maintain the right to private defense of the body
When to start – When there is a possibility of body damage.
How long will it remain – until the damage possibility is completely gone .
The burden of proof – When an accused claims the right to private defense, the burden of proving this evidence is also on him.