Right of private defence in India

INTRODUCTION

Self preservation is the primary instinct of every human being. Every man has the right to defence his own body, property and the body and property of his nearer. This instinct of self preservation is also seen in the animals. This basic principle has only been recognised in the Indian Penal Code.

The right of private defence is recognized in every civilized system of law. It is based on the principle that every man or women is expected to be endowed with a certain amount of self reliance ,courage and capacity to defend himself and his property. It may not be possible for state to give protection to all individual in state at all time and all places. Therefore, the state confers on the individuals in a state the right of private defence (on account of recognition of the practical fact) and it follows from this that where such timely help can be obtained from the state no one should take the law into hands.

In India, the right of private defence is dealt with in section 99 to 106 of IPC. The object that the law commission had in view in enacting these provisions are stated by them thus:

It may be thought that we have allowed too  great latitude to the exercise the right and we are ourselves of opinion that if we had been framing laws for a bold and high spirited people. Accustomed to take the law into their own hands and go behind the line of moderation in repelling injury, it would be been fit to provide additional restrictions. In this country, the danger is on other side. The people are too little disposed to help themselves. The patience with which they submit to the cruel depredations of gangs of robbers and to trespassers is one of the most discoursing symptoms the state of society in India presents to us. Under these circumstances, we are desirous rather to rouse and encourage a many spirit among the people than to multiply restrictions on the exercise of the right of self-defence. [1]

The code has been passed by Parliament; but  as the subject of criminal procedure has been included in concurrent list in the 7th schedule appended to the constitution, as the state legislature may in accordance with the provisions   of the  constitution, modify the provisions of the code. The, modified provisions than apply to state. Thus it would be seen that the code provide for a uniform criminal procedure applicable throughout India. Section 1,4 and 5 of the code and provisions of the constitution of India make it sufficiently flexible to adjust itself to the special needs and condition[2] The right of private defence is preventive and not retributive. This right is available to a person suddenly confronted with immediate necessity of averting an impeding danger which is not his own creation. The necessity must be present, real and apparent[3]

The right of private defence conferred by the code is essentially one of defence or self protection and not right of reprisal or punishment. It is subject to restriction imposed by section 99 and they are important as the right itself. one of the limitation is that the harm must be not be more than that is legitimately  necessary for purpose of defence. Moreover ,the right is coterminous with the commencement and existence of a reasonable apprehension to body from an attempt to commit the offence. It avails only against danger, real, present and Imminent. An act, which would be otherwise be an offence, is declared by this section not to be an offence if committed in the exercise of right of private defence but it cannot be conceded to a person who manipulates the situation where in he can take recourse to private defence to justify an act of aggression.[4]

Section 96. Things done in private defence

Nothing is an offence which is done in the exercise of the right of private defence.

COMMENTS

Harm

[5] The fraternity of the non-gazetted employees, who were on strike, sought to make fun of the complainant, who was a loyalists co-worker and was not participating in the strike. The fun was in the nature of having taken a photograph of the loyalist worker with a garland of shoes around his neck. The photograph was neither shown to the complainant nor published. In a prosecution under section 504 against the accused for having insulted the complainant, the submission was made on behalf of the accused that the triviality of the act with a view to befooling a member of the fraternity should operate as a bar to the wrong alleged. The plea was not sustained and it was held that the complainant had been subjected to indignity although the Court took a lenient view of the matter by merely admonishing the accused

Private defence: object

1. In judging whether accused has exceeded his right to private defence or not the court has to take into account the weapons used; [6] The defence version regarding accused acting in self defence was liable to be proved by accused; [7]
2.  Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the cast that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record; [8]

Right to private defence

(i) The accused is not required to prove the plea of private defence of person beyond reasonable manner of doubt. The onus on the accused is only to show that the defence version is probable one which is reflected from the salient features and the circum­stances in the prosecution case itself; [9]

(ii) Divergent views expressed by court where prosecution failed to explain the injuries sustained by accused in same occurrence. Hence referred to larger Bench; Ram Sunder Yadav v. State of Bihar,[10] 1999 Cr LJ 3671 (SC).

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[1] Criminal law by P S Atchuthen Pillai, Third edition P 146
[2] Lecture on criminal procedure by R V Kelkar third edition at page 2
[3] Kulwant v/s state (2004)9 SCC257
[4] Lecture on criminal procedure by R V Kelkar third edition at page 47
[5] Kishanmohan V/s State of Bihar 1976 Cr.L.J.
[6] Madan Mohan Pandey v. State of Uttar Pradesh, (1991) Cr LJ 467 (SC).
[7] Rasikbhai Ram Singh Rana v. State of Gujarat, 1999 (1) Guj CR 176.
[8] Rizan v. State of Chattisgarh, AIR 2003 SC 976.
[9] Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).
[10] Ram Sunder Yadav v. State of Bihar, 1999 Cr LJ 3671 (SC).