SECTION 97- RIGHT TO PRIVATE DEFENCE OF BODY AND PROPERTY

From Advocatespedia, ASSN: 130623
Jump to navigation Jump to search

It is the duty as well as right of a man to help himself in certain critical situations instead of waiting for the state/authorities to come for the rescue. Just because it is the duty of the state to protect its citizens, one cannot expect the authorities to be available everywhere at the same time. Therefore the law gives people a right to do certain acts to protect themselves which we popularly call as “right to private defence”.

This right is not an act of vengeance or settling of scores but to ward of the threat and imminent danger of an attack and therefore this right cannot be exercised to cause harm to others. Thus the right to private defence cannot be used as a shield after doing anything wrong and for that the courts are required to take into consideration minute details of the confrontation and there must be a reasonable possibility of danger to exercise the right of private defence. Chapter IV (Sections 96 to 106) of the Indian Penal Code deals with the law relating to the right of private defence very expansively. All these sections explain in an elaborative manner that when a person is allowed to use necessary force upon a wrongdoer in order to save himself from some physical harm to his body or property.

In Darshan Singh vs State Of Punjab & Anr[1] the Hon’ble Supreme Court of India held that-

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. That being so, 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.

Section 97 of the Indian Penal Code,1860 provides that-

Every person has a right, subject to the restrictions contained in section 99, to defend-

(First) — His own body, and the body of any other person, against any offence affecting the human body;

(Secondly) —The property, whether movable 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, rob¬bery, mischief or criminal trespass.

This section in first half provides that every person has the right of private defence to protect his own body and to protect the body of any other person against any offence which may affect the human body some of such offences are hurt, grievous hurt, assault, kidnapping etc.. Whereas in the second part of this section the right to private defence is given to a person to protect his property or someone else’s property only against the offences like theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

There may be circumstances where the offence is committed by a person who is not criminally liable by reason of the youth (section 82 & 83), the want of maturity of understanding, unsoundness of mind (section 84) or the intoxication of the person doing that act (section 85 & 86) or any misconception on the part of that person (section 76 & 79), every person has the same right of private defence against that act which he would have if the act were that offence under section 98 IPC.[2]

In cases of trespass generally the person have the right of self defence and to throw the trespasser but in circumstances where the trespasser have the possession of the land for example if the trespasser if the tenant, then there is no such right to self defence of property available for the landlord u/s 97 IPC. In fact in contrary situations, in several cases it has been observed that the tenant have the right to self defence if the land owner unlawfully tries to throw him out of the property.

Moreover even if the trespasser has no possession of the land, the right to self defence is only available till the time the trespasser is on the concerned property/ land.

In Ex.Ct.Rajesh Kumar vs Uoi & Ors. on 25 January, 2011 it was observed that-

Whether in a particular set of circumstances, a person acted in the exercise of right of private defence, is a question of fact to be determined on the facts and circumstances of each case. In determining this question of facts, the Court must consider all the surrounding circumstances. If the circumstances shows that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea and it is not necessary for the accused to plead in so many words that he acted in self defence. The principles as to right of private defence of body are as follows:-

(a) There is no right of private defence against an act which is not in itself an offence under the code.

(b) The right commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit an offence. Although the offence may not have been committed; it is co- terminus with the duration of such apprehension; (Sec 102 IPC) (read).

(c) It is defensive and not a punitive or retributive right. Therefore, in no case more harm than necessary to inflict in defence is permissible;

(d) The right extends to killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the crimes enumerated in the six clauses of Section 100 IPC

RESTRICTIONS UNDER SECTION 99

The right of self defence under section 97 is subject to the restrictions given under section 99 IPC. This section prescribes the limits within which the right to private defence should be exercised.

ACTS AGAINST WHICH THERE IS NO RIGHT TO PRIVATE DEFENCE

This section prescribes that the right to private defence can certain limits. The first half of this section prescribes that there is no right to private defence if the act is done by the public servant or under the colour of his office if the act is such that if it is done or attempted to be done, it does not cause reasonable apprehension of death or of grievous hurt. Moreover if the party attacked had enough opportunity of calling the public authorities to intervene and help, then also the right to private defence does not exist because it is a well established law that no man have the authority to take law in his own hands if he has reasonable chances to ask public authorities to help, even if he wants to protect himself this right to private defence won’t be given to that person.

EXTENT TO WHICH RIGHT TO PRIVATE DEFENCE BE EXERCISED

This section clearly states that excess harm is not at all justified. This is a well established fact that right to private defence cannot be used as a shield to hurt others. Section 99 therefore provides that the gravity of harm should in no case be more that what was actually required for self defence. The measure of self defence must always be proportionate to the quantum of the force used by attacker. Every person in this country has a right to self preservation but all these rights can be exercised within reasonable limits. By reasonable limits it is presumed that the gravity force used in private defence should be in proportion with the force that was used by the wrong doer. For example if a person A is trying to hit a person B with a scale them B in his self defence can use a stick or something but he can not use a knife and kill A in self defence.

In Darshan Singh vs State Of Punjab & Anr[3] the Supreme Court said that:- According to Section 99 of the Indian Penal Code the injury which is inflicted by the person exercising the right should commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh “with 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. The courts in one voice have said that it would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to attack.

In Buta Singh v. The State of Punjab[4] , 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 fact 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, as noted above, a finding of fact.”

  1. (2010) 2 SCC 333
  2. Pandey, P.K., Right to Private Defence in India (2017). Vol. 16, 2017 Law Exam Times (ISSN 2319-9121) 23-31.. Available at SSRN: https://ssrn.com/abstract=3502727
  3. (2010) 2 SCC 333
  4. (1991) 2 SCC 612