Under what circumstances the right of private defense of body extends to causing death

The right of private defence is a very valuable right and it has been recognized in all free, civilized and democratic societies within certain reasonable limits. Duty to protect the life and property of any person is, primarily, of the state, but no state, howsoever large its resources, can provide protections in all situations. Therefore right to defend and repel the unlawful attack has been given legal recognition.

When enacting Sections 96 to 106 of Indian Penal Code, excepting from its penal provisions Certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, legislature clearly intended to arouse and encourage the manly spirit of self defense amongst the citizens, when faced with grave danger. The law does not require a lawabiding citizen to behave like a coward when confronted with imminent unlawful aggression. Section 96 of Indian Penal Code lays down:

"Nothing is an offence which is done in exercise of the right of private defence." In Laxman Sahu v. State, 1988 Cri Law Journal 188, Supreme Court has observed that right of private defence is available only to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation and that necessity must be present, real or apparent.

Section 97 of Indian Penal Code then says:

"Every person has a right, subject to the restrictions contained in Section 99, to defend".

Firstly His own body and body of any other person against any offence affecting human body;

Secondly The property, whether moveable or immovable of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass. So Section 97 proceeds to divide the right of private defence into two parts: the first part dealing with the right of private defence of person and the second part dealing with the right of private defence of property.

Section 98 I.P.C. then provides, "When an act, which would otherwise be a certain offence, is not that offence by reason of the youth, the want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that act or by reason of any misconception on the part of that person, every person has the same right of private defence against that act which he would have if the act were that offence." The principle underlying Section 98 is that right of private defence does not depend upon the actual criminality of the aggressor but on the wrongful character of the act attempted. Section 99 I.P.C. then lays down the limit within which the right of private defence, must be exercised. Section 99 reads as under:

"There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direct may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

Extent to which the right may be exercised

The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Explanation 1. A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant, acting in discharging his official duty.

Explanation 2. A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, acting in discharge of his official duty, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded." So Section 99 I.P.C. define the extent to which right may be pushed and its object is to lay down certain restrictions; first two of which are specially intended to protect public servants, the remaining two paragraphs being more general.

In State of U.P. v. Nayamat, AIR 1987 SC 1652 It was observed that Section 99 specifically says that there is no right of private defence against an act which does not reasonably causes apprehension of death or grievous hurt if done or attempted to be done on the direction of public servant acting in good faith under colour of his office. The protection extends even to acts which will not be strictly justifiable in law.

WHEN THE RIGHT OF PRIVATE DEFENCE OF BODY EXTENDS TO CAUSING DEATH : Section 100 of Indian Penal Code says:

"The right of private defence of the body extends, under the restrictions mentioned in the last preceding Section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:

First Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly, Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly An assault with the intention of committing rape;

Fourthly An assault with the intention of gratifying unnatural lust;

Fifthly An assault with the intention of kidnapping or abducting;

Sixthly An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release." So Section 100 IPC justifies the killing of an assailant when apprehension of atrocious crimes enumerated in several clauses is caused. It should be read subject to the provisions of Section 99. In Kashmiri Lal v. State of Punjab, AIR 1997 SC 393 It was observed that in terms of Section 100 IPC, the right of private defence of the body extends to the voluntarily causing of death if the offence which occasions the exercise of the right be inter alia, such an assault as may reasonably cause the apprehension that death or grievous hurt shall otherwise be the consequence of assault. Law however does not confer a right of private defence on such person who invite an attack on themselves by their own high headedness, threat or attack on another."

Section 101 of Code lays down: "If the offence be not of any of the descriptions enumerated in Section 100, the right of private defence of the body does not extend to voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in Section 99, to the voluntary causing to the assailant, of any harm other than death." Section 102 the reads as under: "The right of private defence of body commences as soon as 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 and it continues as long as such apprehension of danger to body continue Section In Yogendera Morarji v. State of Gujarat, AIR 1980 SC 660 The Supreme Court has set out the extent and the limitations on the exercise of right of private defence of body. It observed:

(i) there is no right of private defence against an attack which is not in itself an offence under the Code;

(ii) the right commences as soon as and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension. Accordingly, the right avails only against a danger imminent, present and real;

(iii) it is a defensive and not a punitive or retributive right. Consequently, in no case, the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. At the same time, it is difficult to expect from a person exercising this right in good faith to weigh golden scales what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender, if he with the instinct of self preservation strong upon him, pursues his defence with a little further than may be strictly in the circumstances to avert that attack.

(iv) The combined effect of the first two clauses is that taking the life of an assailant would be justified on the plea of private defence, if the assault causes reasonably apprehension of death or grievous hurt to the person exercising the right;

(v) the right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to the protection of the public authorities WHEN RIGHT OF PRIVATE DEFENCE OF PROPERTY EXTENDS TO CAUSING DEATH : Section 103 of Indian Penal Code says "The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong doer, if the offence, the committing or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated namely:

First Robbery,

Secondly House breaking by night,

Thirdly Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as place for the custody of property,

Fourthly Theft, mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." So a person may cause death in safeguarding his own property or the property of some one else when there is a reason to apprehend that the person whose death has been caused was about to commit one of the offences as mentioned in Section 103 I.P.C. or to attempt to commit one of those offences.

In Mahavir Choudhary v. State of Bihar, 1996 Criminal Law Journal 2860 (SC) It was observed that Section 103 IPC recognizes extension of the right of private defence up to the full measures but only if such acts or attempts are capable of in calculating reasonable apprehension in the mind that death or grievous hurt would be consequence if the right is not exercised in such full measure.

Section 104 I.P.C. says "If the offence committing of which or the attempting to commit which occasions the exercise of right of private defence, be theft, mischief or criminal trespass, not of any of the descriptions enumerated in the last precedings , that right does not extend to the voluntary causing of death, but does extends, subject to the restrictions mentioned in Section 99, to voluntary causing to the wrong."

Section 105 I.P.C. says:

"The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.

The right of private defence of property against robbery continues as long as offender causes or attempts to cause to any person death or hurt, or wrongful restraint or as long as the fear of instant death or of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against housebreaking by night continues as long as the house trespass which has been begun by such housebreaking continues. "