Right to private defence
Right to private defence is a right every citizen has when faced with grave danger to his life or property, under Sections 96 to 106 of the Indian Penal Code (IPC), 1860.
The IPC states nothing is an offence which is done in the exercise of self-defence. In order to ascertain whether any act done falls under right to self-defence, the Sections 96 to 106 of the IPC need to be examined as a whole.
Everyone has right private defence
In Darshan Singh v State of Punjab & Another, the Supreme Court (SC) describes the guiding principles in deciding whether a person alleged with a criminal offence has legitimately acted in exercise of his right to private defence or not.
SC Guidelines in deciding the right to private defence
The SC guidelines on the principles to be followed in deciding the exercise of private defence consolidated from prior judgements and enlisted in Darshan Singh v State of Punjab & Another, are as follows:
- Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
- The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
- A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
- The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
- It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
- In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
- It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
- The accused need not prove the existence of the right of private defence beyond reasonable doubt.
- The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
- A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.
Basic principles under lying private defence
The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property.
The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. The necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
What all to be checked to decide the issue of private defence?
In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court noted that a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons.
In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private- defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping.
Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration.
But, if the situation shows that in the guise of self- preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a question of fact.
Further reading
