The “general exceptions” contained in sections 76–106 make an offence a non-offence.
RATIONALE BEHIND RIGHT OF PRIVATE DEFENCE
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. The right of private defence is a
justificatory defence in that it involves a particular situation where the use of force is justified.
The law of private defence is based on two cardinal principles, viz.,
- Everyone has the right to defend his own body and property, as also another’s body and property.
- The right cannot be applied as a pretence for justifying aggression for causing harm to another person, nor for causing more harm than is necessary to inflict for the purpose of defence.
Section 96 states the general proposition, that “nothing is an offence which is done in the exercise of the right of private defence.” However, the right is not absolute and is subject to restrictions. The subsequent sections 97 to 105 state the limits within which the right can be exercised, the extent of injury that can be inflicted and against whom these rights can be exercised.
The Penal Code envisages two measures of right of private defence. One is the first degree which shall not reach up to causing of death of the wrongdoer. The other is the full measure which may go up to causing death. Both measures are, however, subjected to the restrictions enumerated in Section 99.
Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 103 recognises extension of the said right up to the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure.
The right of private defence will completely absolve a person from all guilt even when he causes the death of another person in the following situations, viz.;
- If the deceased was the actual assailant, and
- If the offence committed by the deceased which occasioned the cause of the exercise of right of private defence of body and property falls within anyone of the six or four categories enumerated in sections 100 and 103 of the Penal Code respectively, or was an assault reasonably causing the apprehension of his death, as explained in section 106 of the Code.
The right of private defence has been elaborately discussed in sections 97 to 106 from two aspects, namely, defence of the body and defence of property. Sections 97, 98 and 99 are of a general nature and deal with both aspects of right to the defence of body and property. On the other hand, (i) sections 100, 101, 102 and 106 are concerned with defence of body and (ii) sections 103, 104 and 105 with defence of property.
Section 97
Section 97 IPC deals with the subject-matter of right of private defence. The plea of right of private defence comprises the body or property (1) of the person exercising the right, or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property.
Section 99
Section 99 stipulates the acts against which the right of private defence does not arise. It sets the limits within which the right of private defence is to be exercised.
- the first clause refers to the acts of a public servant, while the second clause refers to acts done under the authority or direction of a public servant.
- Clause 1: This clause applies to those cases in which the public servant is acting in good faith under colour of his office, though the particular act being done by him may not be justifiable by law.
The clause applies where a public servant acts irregularly in the exercise of his powers and not where he acts outside the scope of his powers. If the act of a public servant is ultra vires the right of defence may be exercised against him.
- Clause 2 speaks of acts done under the direction of public servant.
- Clause 3 lays down that there is no right of private defence or the protection of one’s own body or property, as also another’s body or property, if there is reasonable opportunity of redress by recourse to the public authorities. No man has a right to take the law into his own hands.
- Clause 4 to section 99 provides that the injury to be inflicted should be proportionate to the harm caused or attempted to be caused.
The right of private defence is a defensive right circumscribed by the statute, available only when the circumstances clearly justify it. It should not be allowed to be used or availed of as a gift for a vindictive, aggressive or retributive purpose. The right of private defence in no case extends to the inflicting of more harm than is necessary in the particular case.
However, explanations 1 and 2 to section 99 provide that the section will apply only if the person, doing the act, has knowledge or has reason to believe that the doer of the act is a public servant or is acting under the direction of a public servant. If the person is acting under directions of a public servant then such person should state the authority under which he acts or if the authority is in writing, he should produce the same if demanded in order to get the protection under this section.
Section 100
Section 100 justifies the killing or of causing any other harm to the assailant under the restrictions mentioned in section 99, if the offence which occasions the exercise of the right be of any description enumerated in clauses
1 to 7 of section 100, IPC, namely, an assault:
- Causing the apprehension of death;
- Causing the apprehension of grievous hurt;
- With the intention of committing rape;
- With the intention of gratifying unnatural lust;
- With the intention of kidnapping or abducting;
- With the intention of wrongfully confining a person under circumstances which may give apprehension that he will be unable to have recourse to the public authorities for his redress.
- Throwing or administering acid causing reasonable apprehension that it will result in grievous hurt.
To invoke section 100, IPC, four conditions must exist, viz.,
firstly, that the person exercising the right of private defence must be free from fault in bringing about the encounter;
secondly, there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create an honest belief of exceeding (great) necessity;
thirdly, there must be no safe or reasonable mode of escape by retreat; and
fourthly, there must have been a necessity for taking the life.
Section 101
Section 101, IPC provides that, if the offence which entitles a man to exercise the right of private defence be not of such serious description as specified in clauses (i) to (vi) to section 100, the right of private defence does not extend to the voluntary causing of death. That is to say, under this section any harm short of death can be successfully inflicted in exercising the right of private defence, subject to the restrictions mentioned in section 99 of Indian Penal Code.
Section 102
This section indicates when the right of private defence of the body commences and till what time it continues.
Section 102 provides that the right of private defence commences as soon as a 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. It does not commence until there is a reasonable apprehension. The danger or the apprehension of danger must be present, real or apparent.
The right lasts so long as the reasonable apprehension of the danger to the body continues. Reasonable ground for the apprehension is requisite.
